A Practical Guide To Labour Law

A Practical Guide
to Labour Law
Ninth Edition
A Practical Guide
to Labour Law
Ninth Edition
Authors
JV du Plessis
BA LLB LLD (Unisa)
Advocate of the High Court
Emeritus Professor of Mercantile Law
MA Fouché
BIuris LLB NHD PSE
Advocate of the High Court
Professor of Labour Law
Senior Commissioner of the CCMA and bargaining councils
Editor
MA Fouché
Members of the LexisNexis Group worldwide
South Africa LexisNexis (Pty) Ltd
www.lexisnexis.co.za
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© 2019
First Edition 1994; reprinted 1996
Second Edition 1996; reprinted 1997, 1998
Supplement to the Second Edition 1998
Third Edition 1998; reprinted 1999, 2000, 2001
Fourth Edition 2001
Fifth Edition 2002; reprinted 2003, 2004, 2005
Sixth Edition 2006; reprinted 2007, 2011
Seventh Edition 2012
Eighth Edition 2015; reprinted 2016, 2017, 2018 (twice)
ISBN softcover 978-0-6390-0442-6

e-book 978-0-6390-0443-3
Copyright subsists in this work. No part of this work may be reproduced in any form or by any means without
the publisher’s written permission. Any unauthorised reproduction of this work will constitute a copyright
infringement and render the doer liable under both civil and criminal law.
Whilst every effort has been made to ensure that the information published in this work is accurate, the authors,
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of the reliance upon the information contained therein.
PREFACE
The main objective of this book is to simplify the study of Labour Law, yet at the same time
to encourage independent thinking and greater understanding of the subject.
The first edition of A Practical Guide to Labour Law was welcomed and very well received at
academic institutions and in practice. The second edition was necessitated by the intro-
duction of the new Labour Relations Act of 1995. Subsequent editions followed to include
new legislation, such as the Employment Equity Act, the Skills Development Act, the Skills
Development Levies Act, the new Unemployment Insurance Act and the Unemployment
Insurance Contributions Act. The amendments to the Labour Relations Act and the Basic
Conditions of Employment Act in 2002 were incorporated in the fifth edition. The sixth
and seventh editions included amendments to all the Acts, as well as an overview of other
relevant legislation that a labour practitioner should be aware of.
Labour legislation received considerable attention over the past number of years and sig-
nificant changes were made to the Basic Conditions of Employment Act, the Employment
Equity Act and the Labour Relations Act in 2013 and 2014 and again in 2018 and 2019. The
amendments to the EEA came into operation on 1 August 2014. The 2013 amendments to
the BCEA came into operation on 1 September 2014 and the 2018 amendments came into
effect on 1 January 2019. The 2014 amendments to the LRA came into operation on 1 Janu-
ary 2015 and the 2018 amendments took effect on 1 January 2019. In addition to these
amendments, the new National Minimum Wage Act and the Labour Laws Amendment Act
were enacted. All these amendments and the new legislation have been included in this, the
ninth, edition.
A Practical Guide to Labour Law is aimed at and can fruitfully be used by all involved in the
study and practice of Labour Law. For non-legal students this book should suffice as a
primary source for their studies; the studying of decided cases will not only be interesting,
but will also improve their insight. Law students will find this book an indispensable aid in
their study of Labour Law. It will complement their study material and the inclusion of case
studies and appendices will elevate their studies to a more advanced level.
Labour Law and industrial relations practitioners may also find the book useful for the
purpose of revising or referring to the most recent principles applicable to a particular
aspect. Decided cases, prescribed forms and Codes of Good Practice have been included.
Each chapter covers specific but salient aspects which are encountered daily in the study
and practice of Labour Law. A chapter starts off by giving the most important current prin-
ciples applicable to the topic under discussion and this is followed by questions and case
studies to aid in the application of the legal principles in question. Some of the case studies
are based on actual court and CCMA cases and, where applicable, reference is made to those
cases. Some of the prescribed forms have also been included, such as referring a dispute to
the CCMA to show the reader how things work in practice.
The authors would like to extend their sincere gratitude to the management and staff of
LexisNexis for their assistance in the preparation and publication of the ninth edition of
this publication.
Editor
May 2019
v
vi A Practical Guide to Labour Law
NOTE TO THE READER

In this publication any reference to one gender
includes the other unless the text specifically
states otherwise. Reference to one gender only
is not intended to be discriminatory.
CONTENTS
Page
Preface .................................................................................................................................. v
Part 1: Common Law

1 Introduction................................................................................................................... 3
1.1 Background .......................................................................................................... 3
1.2 Sources of Labour Law rules ............................................................................... 4
1.3 Lexical order of sources and rules ...................................................................... 4
Questions ....................................................................................................................... 7
2 Common law contract of employment......................................................................... 9
2.1 Introduction ......................................................................................................... 9
2.2 Nature of locatio conductio operarum (contract of employment) ........................ 9
2.3 Conclusion of the contract .................................................................................. 14
2.4 Essentialia of the employment contract............................................................... 15
2.4.1 Specified work ........................................................................................ 15
2.4.2 Remuneration......................................................................................... 16
2.5 Conditions of employment .................................................................................. 16
2.6 Duties of employer ............................................................................................... 17
2.6.1 To accept the employee into his service ............................................... 17
2.6.2 To provide the employee with work...................................................... 17
2.6.3 To pay the remuneration agreed upon ................................................ 18
2.6.4 To pay a quantum meruit ......................................................................... 18
2.6.5 To provide safe working conditions ...................................................... 19
2.6.6 To comply with statutory duties ............................................................ 19
2.7 The employee’s remedies .................................................................................... 19
2.7.1 Cancellation ............................................................................................ 20
2.7.2 Specific performance ............................................................................. 20
2.7.3 Damages .................................................................................................. 20
2.7.4 Refusal to work ....................................................................................... 20
2.7.5 Statutory remedies ................................................................................. 20
2.8 The employee’s duties ......................................................................................... 21
2.8.1 To make his services available ............................................................... 21
2.8.2 To warrant his competence ................................................................... 21
2.8.3 To obey the employer ............................................................................ 22
2.8.4 To be subordinate to the employer ...................................................... 22
2.8.5 Maintaining bona fides ............................................................................ 22
2.8.6 To exercise reasonable care when using the employer’s property ..... 23
2.8.7 To refrain from misconduct .................................................................. 23
2.9 The employer’s remedies .................................................................................... 23
2.9.1 Summary dismissal ................................................................................. 23
2.9.2 Specific performance ............................................................................. 24
2.9.3 Damages .................................................................................................. 24
2.9.4 Statutory remedies ................................................................................. 25
2.10 Termination of the contract of employment ..................................................... 25
2.10.1 By notice ................................................................................................. 25
2.10.2 By the effluxion of time or completion of a specific task .................... 26
vii
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2.10.3 By agreement .......................................................................................... 26
2.10.4 By the death of the employee ................................................................ 26
2.10.5 By insolvency........................................................................................... 26
2.10.6 By the illness of the employee ............................................................... 27
2.10.7 By impossibility of performance ............................................................ 27
2.10.8 By cancellation (summary termination) ............................................... 27
2.10.9 Redundancy of post ............................................................................... 28
2.11 The employer’s delictual liability ........................................................................ 28
2.11.1 Employer/employee relationship ......................................................... 28
2.11.2 The delict must have been committed by the employee in the
scope of employment ............................................................................. 28
2.11.3 The employer’s liability for the delicts of an independent
contractor ............................................................................................... 30
2.12 Restraint of trade ................................................................................................. 30
2.13 The employer and third parties .......................................................................... 31
Questions ....................................................................................................................... 32
Appendix........................................................................................................................ 35
Part 2: Social Legislation

3 Basic conditions of employment & minimum wages .................................................. 49
3.1 Introduction ......................................................................................................... 49
3.2 Objectives of legislation setting minimum standards ........................................ 50
3.3 Definitions ............................................................................................................ 51
3.4 Application ........................................................................................................... 53
3.5 Conditions of employment .................................................................................. 54
3.6 Chapter 2: Regulation of working time .............................................................. 54
3.6.1 Ordinary working hours ........................................................................ 55
3.6.2 Overtime ................................................................................................. 55
3.6.3 Compressed working week .................................................................... 56
3.6.4 Averaging of hours of work ................................................................... 56
3.6.5 Meal intervals and rest periods.............................................................. 56
3.6.6 Work on Sundays and public holidays .................................................. 56
3.6.7 Night work .............................................................................................. 57
3.7 Leave ..................................................................................................................... 57
3.7.1 Annual leave ........................................................................................... 58
3.7.2 Sick leave ................................................................................................. 58
3.7.3 Maternity leave ....................................................................................... 59
3.7.4 Parental leave.......................................................................................... 60
3.7.5 Adoption leave........................................................................................ 60
3.7.6 Commissioning parental leave .............................................................. 60
3.7.7 Family responsibility leave ..................................................................... 61
3.8 Particulars of employment and remuneration................................................... 62
3.9 Termination of employment ............................................................................... 64
3.10 Minimum wages ................................................................................................... 65
3.10.1 Minimum wage in terms of the NMWA ................................................ 65
3.10.2 Exemptions ............................................................................................. 67
3.11 Prohibition of employment of children and forced labour .............................. 68
3.12 Variation of conditions of employment.............................................................. 68
3.12.1 Variation by agreement.......................................................................... 68
3.12.2 Variation by ministerial determination................................................. 68
3.12.3 Sectoral determinations ......................................................................... 69
3.13 National Minimum Wage Commission ............................................................... 72
3.14 Monitoring and enforcement ............................................................................. 72
3.15 Dispute resolution ................................................................................................ 74
3.16 General ................................................................................................................. 75
Contents ix
Page
Questions ....................................................................................................................... 76
Appendices .................................................................................................................... 80
4 Employment Equity Act 55 of 1998 .............................................................................. 97
4.1 Introduction ......................................................................................................... 97
4.2 Constitutional equality......................................................................................... 97
4.2.1 The equality clause ................................................................................. 97
4.2.2 The affirmative action clause................................................................. 98
4.2.3 The anti-discrimination clause .............................................................. 98
4.2.4 Proof of discrimination .......................................................................... 98
4.3 The objectives of the Employment Equity Act ................................................... 100
4.4 Application of the Employment Equity Act ....................................................... 100
4.5 Chapter II – Prohibition of unfair discrimination ............................................. 101
4.5.1 Meaning of “unfair discrimination” ...................................................... 101
4.5.2 Provisions of Chapter II ......................................................................... 102
4.5.3 Dispute resolution .................................................................................. 103
4.6 Chapter III – Affirmative action .......................................................................... 105
4.6.1 Affirmative action measures .................................................................. 105
4.6.2 Duties of designated employers ............................................................ 105
4.7 Commission for Employment Equity .................................................................. 107
4.8 Monitoring, enforcement and legal proceedings .............................................. 108
4.8.1 Labour inspectors................................................................................... 108
4.8.2 The Director-General ............................................................................. 108
4.8.3 The Labour Court .................................................................................. 109
4.9 Protection of employee rights ............................................................................. 109
4.10 General provisions ............................................................................................... 110
Questions ....................................................................................................................... 110
Appendices .................................................................................................................... 116
5 Unemployment insurance laws ..................................................................................... 135
5.1 Introduction ......................................................................................................... 135
5.2 Definitions ............................................................................................................ 135
5.3 Application of the Unemployment Insurance Act............................................. 136
5.4 Framework of the Unemployment Insurance Act ............................................. 136
5.4.1 Unemployment Insurance Fund ........................................................... 136
5.4.2 Unemployment Insurance Board.......................................................... 137
5.4.3 Unemployment Insurance Commissioner............................................ 137
5.4.4 Claims officers ........................................................................................ 137
5.4.5 Director General .................................................................................... 137
5.5 Benefits ................................................................................................................. 137
5.5.1 Right to benefits ..................................................................................... 137
5.5.2 Calculation of benefits ........................................................................... 138
5.5.3 Unemployment benefits ........................................................................ 139
5.5.4 Illness benefits ........................................................................................ 141
5.5.5 Maternity benefits .................................................................................. 142
5.5.6 Parental benefits ..................................................................................... 142
5.5.7 Adoption benefits ................................................................................... 143
5.5.8 Commissioning parental benefits ......................................................... 144
5.5.9 Dependants’ benefits ............................................................................. 145
5.5.10 General provisions relating to benefits ................................................. 146
5.7 Enforcement......................................................................................................... 147
5.9 Miscellaneous ....................................................................................................... 148
5.10 Unemployment Insurance Contributions Act 4 of 2002 ................................... 149
Questions ....................................................................................................................... 150
Appendices .................................................................................................................... 150
x A Practical Guide to Labour Law
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6 Compensation for Occupational Injuries and Diseases Act 130 of 1993 .................. 167
6.1 Introduction ......................................................................................................... 167
6.2 Application of the Act .......................................................................................... 168
6.4 Procedure to claim compensation ...................................................................... 169
6.5 The right to compensation .................................................................................. 169
6.6 Compensation ...................................................................................................... 170
6.6.1 Temporary disablement ......................................................................... 170
6.6.2 Permanent disablement ......................................................................... 171
6.6.3 In the event of the death of an employee............................................. 171
6.6.4 Compensation for occupational diseases.............................................. 172
6.6.5 Increased compensation ........................................................................ 172
6.7 Claiming compensation from the employer or a third party ............................ 172
6.8 Occupational Diseases in Mines and Works Act 78 of 1973 .............................. 173
Questions ....................................................................................................................... 173
Appendices .................................................................................................................... 177
7 Occupational Health and Safety Act 85 of 1993 ......................................................... 187
7.1 Introduction ......................................................................................................... 187
7.2 Application of the Act .......................................................................................... 187
7.3 Advisory Council for Occupational Health and Safety ...................................... 188
7.4 Duties of employers ............................................................................................. 188
7.5 Duties of employees ............................................................................................. 189
7.6 Health and safety representatives ....................................................................... 189
7.7 Health and safety committees ............................................................................. 190
7.8 Inspectors ............................................................................................................. 191
7.9 Miscellaneous ....................................................................................................... 192
7.10 Mine Health and Safety Act 29 of 1996 .............................................................. 193
Questions ....................................................................................................................... 193
Appendix........................................................................................................................ 196
8 Skills development ........................................................................................................ 199
8.1 Introduction ......................................................................................................... 199
8.2 Skills development strategy ................................................................................. 200
8.3 The skills development strategy in the context of legislation and other
policy proposals .................................................................................................... 200
8.4 Skills Development Act 97 of 1998...................................................................... 201
8.4.1 Introduction ........................................................................................... 201
8.4.2 Purposes of the Act ................................................................................ 201
8.4.3 Structures of learning ............................................................................ 202
8.4.4 Skills development programmes ........................................................... 204
8.4.5 Financing of skills development ............................................................ 206
8.4.6 Legal proceedings .................................................................................. 206
8.5 Skills Development Levies Act 9 of 1999 ............................................................ 207
8.6 Payment of grants................................................................................................. 207
Questions ....................................................................................................................... 208
Appendix........................................................................................................................ 209
9 Employment Services Act 4 of 2014 ............................................................................. 219
9.1 Introduction ......................................................................................................... 219
9.2 Definitions ............................................................................................................ 219
9.3 Framework of the Act .......................................................................................... 220
9.3.1 Public employment services................................................................... 220
9.3.2 Private employment agencies ................................................................ 221
9.3.3 Productivity South Africa ....................................................................... 221
9.3.4 Supported Employment Enterprises..................................................... 221
9.3.5 Employment Services Board .................................................................. 222
Contents xi
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9.4 Work schemes....................................................................................................... 222
9.5 Employment of foreigners ................................................................................... 222
9.6 Monitoring and enforcement ............................................................................. 222
Questions .............................................................................................................................. 223
Part 3: Labour Relations

10 Development of South African Labour Law ............................................................... 227
10.1 Introduction ......................................................................................................... 227
10.2 National Economic, Development and Labour Council Act 35 of 1994 .......... 228
10.2.1 Establishment of NEDLAC .................................................................... 228
10.2.2 Objectives and functions of NEDLAC .................................................. 229
Questions ....................................................................................................................... 230
11 Labour Relations Act 66 of 1995 .................................................................................. 231

11.1 Introduction ......................................................................................................... 231
11.2 Application of the LRA ........................................................................................ 233
11.3 Atypical employment ........................................................................................... 235
Questions ....................................................................................................................... 238
12 Framework of the Labour Relations Act...................................................................... 241

12.1 Introduction ......................................................................................................... 241
12.2 Trade unions and employers’ organisations ...................................................... 242
12.3 Bargaining councils ............................................................................................. 244
12.3.1 Establishment of a bargaining council ................................................. 244
12.3.2 Functions of bargaining councils .......................................................... 245
12.3.3 Bargaining councils in the public service ............................................. 245
12.4 Statutory councils ................................................................................................. 247
12.4.1 Establishment and registration of statutory councils ........................... 247
12.4.2 Powers and functions of statutory councils .......................................... 247
12.5 Commission for Conciliation, Mediation and Arbitration (CCMA) ................... 248
12.5.1 Establishment of the CCMA .................................................................. 248
12.5.2 Functions of the CCMA ......................................................................... 248
12.6 Labour Court........................................................................................................ 249
12.6.1 Composition ........................................................................................... 249
12.6.2 Jurisdiction.............................................................................................. 249
12.6.3 Powers and functions of the Labour Court .......................................... 250
12.6.4 General provisions relating to the Labour Court ................................ 250
12.7 Labour Appeal Court ........................................................................................... 251
12.7.1 Composition ........................................................................................... 251
12.7.2 Jurisdiction.............................................................................................. 251
12.8 Workplace forums ................................................................................................ 252
Questions ....................................................................................................................... 252
13 Freedom of association ................................................................................................. 255

13.1 Introduction ......................................................................................................... 255
13.2 Employee rights.................................................................................................... 255
13.3 Employer rights .................................................................................................... 256
13.4 Trade union and employers’ organisation rights .............................................. 257
13.5 Freedom of association disputes ......................................................................... 257
Questions ....................................................................................................................... 257
14 Collective bargaining .................................................................................................... 259

14.1 Introduction ......................................................................................................... 259
14.2 Recognition and the duty to bargain .................................................................. 259
xii A Practical Guide to Labour Law
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14.3 Organisational rights ........................................................................................... 260
14.3.1 Right of access to workplace .................................................................. 264
14.3.2 Deduction of trade union subscriptions or levies ................................ 264
14.3.3 Leave for trade union activities ............................................................. 265
14.3.4 Trade union representatives .................................................................. 265
14.3.5 Disclosure of information ...................................................................... 266
14.3.6 Exercise of organisational rights ........................................................... 266
14.3.7 Resolution of disputes about organisational rights .............................. 267
14.4 Collective bargaining structures.......................................................................... 268
14.4.1 Bargaining councils ................................................................................ 268
14.4.2 Statutory councils ................................................................................... 269
14.4.3 Workplace forums .................................................................................. 269
14.5 The bargaining process ....................................................................................... 269
14.5.1 Bargaining unit....................................................................................... 269
14.5.2 Bargaining levels .................................................................................... 270
14.5.3 Bargaining agenda ................................................................................. 270
14.5.4 Bargaining conduct ................................................................................ 270
14.6 Collective agreements .......................................................................................... 271
14.6.1 Legal effect of collective agreements .................................................... 271
14.6.2 Agency shop agreements ....................................................................... 272
14.6.3 Closed shop agreements ........................................................................ 273
14.6.4 Funding agreements .............................................................................. 273
14.6.5 Resolution of disputes about collective agreements ............................ 274
Questions ....................................................................................................................... 275
Appendices .................................................................................................................... 278
15 Strikes and lockouts ...................................................................................................... 291

15.1 Introduction ......................................................................................................... 291
15.2 A right to strike .................................................................................................... 291
15.3 Definition of a strike ............................................................................................ 292
15.4 Prohibited strikes (absolute limitations on industrial action) .......................... 292
15.4.1 Essential services ..................................................................................... 293
15.4.2 Maintenance services ............................................................................. 294
15.5 Protected strikes ................................................................................................... 294
15.6 Consequences of a strike ..................................................................................... 296
15.7 Other forms of industrial action ......................................................................... 297
15.7.1 Secondary strikes .................................................................................... 297
15.7.2 Picketing ................................................................................................. 298
15.7.3 Protest action to promote or defend socio-economic interests .......... 299
15.8 Determining the nature and status of industrial action .................................... 300
15.9 Lockouts ............................................................................................................... 302
Questions ....................................................................................................................... 303
Appendices .................................................................................................................... 307
16 Worker participation ..................................................................................................... 331
16.1 Introduction ......................................................................................................... 331
16.2 Establishment of a workplace forum .................................................................. 332
16.3 Worker participation ........................................................................................... 333
16.3.1 Disclosure of information ...................................................................... 333
16.3.2 Matters for consultation ......................................................................... 333
16.3.3 Joint decision-making ............................................................................ 334
Questions ....................................................................................................................... 335
Appendix........................................................................................................................ 336
Contents xiii
Page
17 Dismissals....................................................................................................................... 341
17.1 Introduction ....................................................................................................... 341
17.2 Definition of dismissal ....................................................................................... 342
17.3 Automatically unfair dismissals ......................................................................... 345
17.4 Date of dismissal ................................................................................................ 347
17.5 Requirements for a fair dismissal...................................................................... 347
17.5.1 Substantive fairness ............................................................................. 347
17.5.2 Procedural fairness ............................................................................. 348
17.6 Dismissal for misconduct................................................................................... 349
17.7 Dismissal for incapacity ..................................................................................... 351
17.8 Dismissal for operational requirements ........................................................... 354
17.9 Disputes about unfair dismissals ....................................................................... 356
17.10 Remedies for unfair dismissal ........................................................................... 360
17.11 Transfer of the contract of employment .......................................................... 361
Questions ....................................................................................................................... 363
Appendices .................................................................................................................... 371
18 Unfair labour practices ................................................................................................. 381
18.1 Introduction ....................................................................................................... 381
18.2 Definition of “unfair labour practice” .............................................................. 382
18.3 Promotions ......................................................................................................... 383
18.4 Demotions .......................................................................................................... 386
18.5 Benefits and training ......................................................................................... 387
18.6 Unfair suspension and other disciplinary action ............................................. 389
18.7 Refusal to reinstate or re-employ ...................................................................... 390
18.8 Probation ............................................................................................................ 391
18.9 Protected Disclosures Act of 2000 .................................................................... 392
18.10 Job applicants ..................................................................................................... 395
18.11 Dispute resolution ............................................................................................. 396
Questions ....................................................................................................................... 396
19 Dispute resolution ......................................................................................................... 403
19.1 Introduction ......................................................................................................... 403
19.2 Structures for dispute resolution ........................................................................ 403
19.3 Dispute resolution by councils ............................................................................ 405
19.3.1 Accreditation .......................................................................................... 405
19.3.2 Jurisdiction of councils .......................................................................... 405
19.3.3 Referral of dispute to council ................................................................ 406
19.3.4 Subsidies, fees and confidentiality ........................................................ 407
19.4 Dispute resolution by the CCMA ........................................................................ 407
19.4.1 CCMA jurisdiction .................................................................................. 407
19.4.2 Conciliation ............................................................................................ 409
19.4.3 Arbitration .............................................................................................. 410
19.4.4 The arbitration award ............................................................................ 411
19.4.5 Powers of CCMA commissioners ........................................................... 412
19.5 Con-arb ................................................................................................................. 413
19.6 Inquiry by arbitrator ............................................................................................ 413
19.7 Labour Court........................................................................................................ 414
19.8 Dispute resolution of specific disputes ............................................................... 415
Questions ....................................................................................................................... 425
Appendices .................................................................................................................... 428
20 Other relevant legislation ............................................................................................. 439
20.1 Introduction ......................................................................................................... 439
20.2 Other labour legislation ...................................................................................... 439
20.2.1 Public Service Act ................................................................................... 439
xiv A Practical Guide to Labour Law
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20.2.2 Employment of Educators Act............................................................... 440
20.2.3 Local Government: Municipal Systems Act .......................................... 441
20.3 Other legislation .................................................................................................. 442
20.3.1 Extension of Security of Tenure Act ..................................................... 443
20.3.2 Promotion of Access to Information Act .............................................. 444
20.3.3 Promotion of Administrative Justice Act .............................................. 446
20.3.4 Intercepting and Monitoring Prohibition Act ..................................... 448
20.3.5 Electronic Communications and Transactions Act ............................. 449
20.3.6 Regulation of Interception of Communications and provision of
Communication-related Information Act ............................................. 449
20.3.7 Protection of Personal Information Act ............................................... 450
20.3.8 Broad Based Black Economic Empowerment Act ............................... 452
Bibliography ......................................................................................................................... 455
Table of cases ....................................................................................................................... 457
PART
1
COMMON LAW
1
INTRODUCTION
1.1 Background
Labour Law is divided into individual and collective labour law. Historically, the employ-
ment contract was regarded as a form of lease (see Chapter 2) and, in keeping with the
individualistic nature of Roman-Dutch law, dealt with only the individual aspects of the em-
ployment relationship. This relationship fell squarely within the private domain and, with
the exception of employment in the civil service, was regulated by the common law rules
governing contracts.
Collective labour law, on the other hand, does not have its roots in Roman-Dutch law,
but is regulated largely by legislation. Collective labour law concerns itself with the relation-
ships between employers and trade unions, between employers inter se and between trade
unions inter se. The product of collective bargaining, i.e. negotiations between trade unions
and employers or employers’ organisations, is collective agreements which take precedence
over the provisions contained in individual contracts of employment.
The individualistic and voluntary rights-based regulation of the employment relationship
has changed dramatically since the emergence of trade unionism and the increased inter-
vention of the State in the sphere of employment by means of legislation. Although the
port of entry into the employment relationship remains the common law contract of em-
ployment, regulated mostly by principles derived from Private Law, it may well be argued
that the conduct of the parties is regulated largely by statute law and rules created in terms
of those statutes, such as the Basic Conditions of Employment Act (BCEA) and collective
agreements in terms of the Labour Relations Act (LRA). It is for this reason that some
authors question the nature of the modern employment relationship: is it a purely contrac-
tual (a consensual) relationship or should it be viewed as one of status?
A contractual relationship is one in which the parties enjoy great freedom to reach
agreement on the content of the rules that are to govern their respective rights and obliga-
tions in terms of the contract entered into. Drawing on the analogy of marriage, the status
view holds that, once the parties have voluntarily entered into the relationship, the law
automatically imposes rights and duties on them without their having much say in formu-
lating the rules that will govern their relationship. To a large extent the regulation of the
employment relationship has moved into the public law domain, although its origins were
and remain in Private Law.
Common law places the individual employee in a weak position vis-à-vis his employer and
offers little or no protection to the employee. Common law, for example, does not provide
for maximum working hours and paid leave. The common law rule of “no work, no pay”
prevails. In terms of common law a job applicant, having the freedom to contract, has the
choice to commit himself contractually to work for, for example, seven days a week,
15 hours per day and with no provision for paid holiday or sick leave. Labour legislation is
thus necessary to provide better protection for an employee and to counter this kind of
3
4 A Practical Guide to Labour Law
asymmetry in employment contracts by creating, inter alia, minimum conditions of em-

ployment which the parties may not ignore even if both are perfectly willing to do so.
1.2 Sources of Labour Law rules

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

Common law views the employment contract (location conductio operarum) as an ordinary
commercial contract, voluntarily entered into by two parties.
The imposition of rules on parties to an agreement may cause conflict between those
externally derived rules and the provisions of the contract the parties have agreed to. The
various labour statutes, serving divergent social objectives, may themselves come into con-
flict. Because of the many sources of rules governing a variety of employment relationships,
it is important to know which rules take precedence. If, for example, an employer is re-
quired to give a certain period of notice for the termination of employment in terms of the
individual employment contract and this period differs from the required notice period in
a collective agreement, which in turn differs from the provisions regulating notice periods
in the BCEA, which is the binding norm? Are there any other laws that apply in respect of
that specific sector? The answers to these questions will determine which provision should
take precedence. Likewise, an employee who is required to work overtime may find that
Chapter 2 of the BCEA is not applicable to him because he earns in excess of the BCEA
threshold amount determined by the Minister; or an applicable collective agreement may
permit or require him to work those hours.
Introduction 5
It is thus necessary, in every situation where a multiplicity of laws governs the employment
relationship, to determine which of those laws take precedence. An overview of the hierarchy
of the various labour laws is provided here to facilitate an understanding of which rules
apply.
Bill of Rights
1
Core rights in terms of the BCEA and the national mini-
mum wage in terms of the NMWA
Bargaining council collective agreements
Collective agreements
(other than council agreements)
Sectoral and ministerial determinations
BCEA
Individual agreements
(contracts of employment)
Common law
From the above diagram the following is clear:

• common law applies as the default option where no other rule applies in a particular
situation;
• individual contracts of employment override the common law;
• the BCEA takes precedence over common law and a contract of employment. However,
if the contract of employment provides more favourable conditions of employment than
2
those contained in the BCEA, the contract will prevail and not the BCEA;
• collective agreements concluded outside a bargaining council take precedence over
common law principles, contracts of employment and the BCEA (except for the core
rights);
________________________
1 The core rights are the following, contained in the BCEA: the arrangement of working time with due
regard to health, safety and family responsibilities (s 7); the maximum of 45 hours ordinary working
time per week (s 9); the protection afforded to employees who perform regular night work (s 17(3) and
(4)); the entitlement to sick leave (ss 22–24), maternity leave (s 25), parental leave (s 25A), adoption
leave (s 25B) and commissioning parental leave (s 25C); the entitlement to annual leave (s 20),
although annual leave may by collective agreement be reduced to two weeks per year; and the pro-
visions contained in Ch 6 of the BCEA relating to the prohibition of child labour and forced labour.
Note that the provisions relating to parental, adoption and commissioning parental leave have not yet
taken effect as at the date of going to print (June 2019). Once the Labour Laws Amendment Act 10 of
2018 comes into operation these provisions will apply.
2 S 4(c) of the BCEA.
• ministerial determinations and sectoral determinations take precedence over the com-
mon law, contracts of employment and the BCEA;
• collective agreements concluded in a bargaining council take precedence over all the
3
preceding provisions. A council collective agreement may, of course, not vary the core
rights contained in the BCEA, except that annual leave may be reduced to two weeks per
year;
• the core rights in the BCEA and the national minimum wage are subject only to constitu-
tional norms. A contract, collective agreement or sectoral determination may deviate
from the prescribed minimum, provided it is more favourable.
The following guidelines may prove useful when determining which set of laws apply:
Step 1: Determine the agreed terms and conditions of employment, that is, the employment
conditions the employer and employee agreed upon in their contract of employ-
ment (whether verbal or written).
Step 2: Determine whether the provisions of the BCEA apply. In the majority of instances
the BCEA will apply, but in a few exceptional cases all or some of the provisions of
the BCEA do not apply, such as in the case of a person who earns in excess of the
BCEA threshold amount (determined by the Minister in terms of section 6(3) of
the BCEA) or a senior managerial employee.
Step 3: If the BCEA or some of its provisions are applicable, compare the relevant provisions
with those contained in the contract of employment. The most favourable provision
takes precedence. For example, if the employment contract provides for 22 days’
annual leave, it will prevail because it is more favourable than the 21 days provided
for in the BCEA. Conversely, if the contract provides for 18 days’ leave, the BCEA
takes precedence because its provision of 21 days’ leave is the minimum standard
and is more favourable.
Step 4: Determine whether a ministerial or sectoral determination is applicable. If it is, the
relevant provisions of the BCEA and contract of employment can be ignored because
a determination takes precedence, regardless of whether it is more or less favour-
able. A determination may, of course, not vary the core rights of an employee. If it
does, the provision in the determination varying a core right is null and void and
the provisions of the BCEA in this regard will apply.
Step 5: Determine whether a collective agreement regulates the issue in question. If so, the
collective agreement takes precedence over all the other provisions, regardless of
whether the provision in the collective agreement is more or less favourable than
any of the other provisions. A collective agreement may, of course, not vary the
core rights of an employee, except that a collective agreement concluded in a bar-
gaining council may reduce annual leave to two weeks per year. Any provision in a
collective agreement that varies a core right in contravention of the BCEA may be
ignored. The BCEA will prevail in such an instance.
Step 6: If a collective agreement is in existence, determine whether the agreement was con-
cluded in a bargaining council or at plant level. A council collective agreement
always takes precedence over a collective agreement concluded outside a bargain-
ing council.
Step 7: If none of the above applies, refer to the common law rules.
The above diagram does not reflect sector specific legislation, such as the Merchant Ship-
ping Act 57 of 1951 and various statutes regulating employment in the public sector (e.g.
nursing, education, SAPS and correctional services). As a general rule, the sources in the
________________________
3 S 49 of the BCEA & s 199 of the LRA.

Introduction 7
diagram apply only if one of the sector specific Acts does not cater for a particular situation.
The sector specific Acts take precedence over the illustrated sources, but remain subor-
dinate to the Bill of Rights which remains the supreme law of the land. Furthermore, if a
provision in a sector specific Act (or any other employment law) is in conflict with the
relevant provisions in the LRA, the LRA applies (s 210 of the LRA).
Finally, the fact that common law appears at the bottom of the hierarchy must not lead
to the conclusion that it is irrelevant. The continued relevance of the common law, despite
the existence of so many other sources of Labour Law, can be ascribed to the fact that the
Constitution requires the courts to interpret common law principles in accordance with con-
stitutional values, thereby ensuring that the common law retains its dynamic ability to adapt
to a changing society. Furthermore, common law remains relevant because it provides the
basis for the modern day contract of employment. It is in terms of common law that the
contract is concluded and that the parties derive a number of rights and obligations. Com-
mon law still regulates breach of contract and, to a large extent, remedies for breach, as
well as termination of the contract and a variety of other issues. The next chapter deals with
the common law contract of employment and, because the common law cannot be ignored,
it should be studied with care.
Questions
Question 1
Briefly explain which of the following applies in the event of a conflict between their provi-
sions:
3.1 the contract of employment and a collective agreement; (2)
3.2 the contract of employment and common law; (2)
3.3 a collective agreement and the Basic Conditions of Employment Act. (2)
Question 2
When Billy was employed as a factory worker at Unisex Clothing Manufacturers (Pty) Ltd
he and his employer concluded a contract of employment in terms of which Billy would,
inter alia, be entitled to 21 consecutive days’ annual leave. (This provision is in accordance
with the provisions of the BCEA.) Approximately two years after Billy’s appointment he
joined the Leather and Textiles Workers’ Union. Both the union and the company (via the
employers’ organisation it belonged to) were parties to the bargaining council for the
textile industry. The parties to the council then negotiated a collective agreement which
provided for 25 consecutive days’ annual leave. Explain whether Billy would be entitled to
21 or 25 consecutive days’ annual leave. (4)
Question 3
Jonas is an employee at a private security company. He works six days per week. In terms of
his contract of employment he is required to work eight-and-a-half hours per day. The
BCEA limits normal working hours to a maximum of 45 hours per week and eight hours
per day. A sectoral determination, promulgated in terms of the BCEA, applies and provides
for a maximum of 40 hours per week and seven hours per day. Which of these provisions
are applicable to Jonas? Motivate your answer. (4)
Question 4
John’s contract of employment provided for better motor vehicle benefits than those pro-
vided for in a collective agreement entered into between his employer and the union. When
John insists on the benefits as per his contract, the employer refuses to grant those benefits,
relying on the collective agreement. John feels that this is unfair because nothing prevents
an employee and an employer from entering into a contract that provides better benefits
than those provided for in a collective agreement. The agreement in question provides for
actual benefits and other conditions of employment rather than just the minima. Explain,
with reference to case law, which provisions should take precedence. (10)
Hint: See Ekurhuleni Metropolitan Municipality Germiston and Van Rooyen (2002) 23 ILJ 1104
(ARB); The National Bargaining Council for the Road Freight Industry & Another v Carlbank
Mining Contract (Pty) Ltd & Another unreported, JA 52/10, 20 March 2012 (LAC).
2
COMMON LAW CONTRACT
OF EMPLOYMENT
2.1 Introduction
The contract of employment is traditionally considered a sub-species of the common law
contract of lease, with its origins in the Roman law. Roman law distinguished three types of
lease agreements:
• locatio conductio rei or the rental of a thing;
• locatio conductio operarum or the hiring of services – the so-called ordinary contract of
employment (service);
• locatio conductio operis or the hiring of a piece of work.
In this chapter locatio conductio operarum or the ordinary contract of employment will be con-
sidered as it forms the basis of the “modern” employment contract – the foundation upon
which more complicated relationships are constructed.
The ordinary contract of employment involves the rendering of labour or services by the
employee to his employer for remuneration, while the employee subjects himself to the
supervision and control of the employer. The employee consequently sacrifices his freedom
to some extent by subjecting himself to the authority of his employer. The employer
decides how his labour is to be applied and utilised.
The common law principles applicable to contracts of employment form part of indi-
vidual Labour Law, which means that the parties to the agreement, the employer and
employee, negotiate the terms of their contract individually and freely. In contrast is collect-
ive Labour Law, provided for in the Labour Relations Act (LRA) and in terms of which a
group of employees (a trade union) negotiates with a single employer or a group of em-
ployers (employers’ organisation) on matters of mutual interest, such as employment
conditions.
The common law principles are still applicable but they have been greatly augmented by
legal provisions. In instances where labour legislation is silent on a particular issue, the
common law applies.
2.2 Nature of locatio conductio operarum (contract of employment)

Locatio conductio operarum or the ordinary contract of employment may be defined as a
reciprocal contract in terms of which an employee places his services at the disposal of
another person or organisation – the employer – at a determined or determinable remu-
neration in such a way that the employer is clothed with authority over the employee and
exercises supervision regarding the rendering of the employee’s services.
In contrast, locatio conductio operis or the contract of letting and hiring of (piece) work is
concluded between an employer and an independent contractor and may be described as a
9
reciprocal contract between the parties in terms of which the independent contractor
undertakes to build, manufacture, repair or alter a corporeal thing within a certain period
and in return the employer undertakes to pay the contractor a reward.
The contractor is an independent third party and does not form part of the employer’s
enterprise. The contractor undertakes to do a certain piece of work against payment but, as
opposed to the employee in terms of the ordinary contract of employment, he is not subject
to the control of the employer. He decides how and when the work will be done within the
broader parameters of the contract. This means that, although he has discretion as to how
and when to perform, he is obliged to produce the required results within the stipulated
time or within a reasonable time if no time has been stipulated. Upon proper completion of
the work by the contractor, the contract is terminated. Examples of contractors who accept
work on this basis are building contractors and contractors who undertake the building of
dams, bridges and roads.
A third type of contract in terms of which one person renders services to another is the
rendering of professional services. This includes services rendered by an attorney, advocate,
auditor or doctor. In this instance a contract of mandate is concluded between the parties.
It differs from the ordinary contract of employment in that the person who is rendering the
services is not subjecting himself to the authority of the other person and he is performing
professional services, whereas the ordinary employee normally performs tasks of a more
general nature.
A contract of mandate may be defined as a contract in terms of which the mandatory
undertakes to perform a mandate for the mandator, for example a mandate given to a
doctor to treat the mandator or a mandate to an attorney to act on behalf of the mandator
in a court case.
In the contract of mandate the mandatory therefore performs a specific mandate given
to him by the mandator. He must perform the mandated acts, but is not subject to the
authority of the mandator.
It is not always easy to distinguish between an employee, an independent contractor and
a mandatory. The employment relationship is sometimes even confused with agency. It is,
however, necessary to determine whether a person who performs a task for another is an
employee because only an employee enjoys legislative protection and has access to the dispute
resolution mechanisms created under the LRA, such as the CCMA (Commission for Con-
ciliation, Mediation and Arbitration) and the Labour Court. Only employees enjoy the free-
dom of association to join trade unions and the protection afforded by the Basic Conditions
of Employment Act (BCEA). Furthermore, only employees are entitled to social security
benefits in terms of the Unemployment Insurance Act (UIA) and the Compensation for
Occupational Injuries and Diseases Act (COIDA).
An important feature of the ordinary contract of employment is that the employee is sub-
ject to the authority and supervision of the employer. This element of control – referred to
as the control test – is distinctive of the ordinary contract of employment and has been used
to distinguish between the ordinary contract of employment and other contracts in terms of
which work is performed. In terms of the control test the employer does not need to have
absolute authority over the employee, but some degree of control is required. Control in this
context refers to the fact that an employer may issue instructions, which have to be obeyed,
while also prescribing the manner and time in which a task has to be completed. The Court,
in R v Feun 1954 (1) SA 58 (T), observed as follows:
Complete control in every respect is . . . not essential . . . and some degree of freedom from con-
trol is not incompatible with the relationship . . . Whether the control exercised is such as to lead
to the inference that the engaged person is a servant (employee) is therefore a question of degree.
In terms of the control test the distinction between an employee and an independent con-
tractor is thus to be found in the fact that the employer has some degree of control,
enabling him to decide how the labour of the employee is to be utilised. The element of
control is to a large degree absent in the case of an independent contractor.
The control test proved inadequate to distinguish conclusively between employees and
independent contractors. The courts adopted other tests in the quest to determine the
Common law contract of employment 11
existence of an ordinary employment relationship. The test that finally found favour with
both the courts and academics is the “dominant impression” or “mixed” test. The dominant
impression test requires a consideration of all the facts as they appear from the agreement
between the parties, their practices and customs and the evidence led in court. The result-
ant impression will enable one to decide whether or not the relationship between the par-
ties is an ordinary contract of employment. While no list can be exhaustive, the following
factors tend to indicate the existence of an employment relationship:
• that the person who alleges to be an employee is obliged to render his services personally
and is not allowed to delegate this obligation;
• that he has to keep fixed hours and is paid a regular wage or salary;
• that he is subject to the alleged employer’s disciplinary code;
• that he is entitled to benefits, such as a pension fund or medical aid scheme; and
• that he is subject to a degree of control by the employer.
None of these factors is conclusive in itself, but collectively they assist in determining
whether a person is, in fact, an employee. It may thus happen that a person who does not
keep fixed hours and who earns a commission is an employee.
The following cases offer interesting examples.
In Leon-Cachet v De Jager 1994 3 LCD 47 (IC) the “employee” did not receive a salary and
had a claim for remuneration only for a specific task done; thus, he was paid for production
rather than service time. No PAYE had been deducted. The Court held that this person was
not an employee, but an independent contractor.
The judgment of the Labour Appeal Court in Borchards v Pearce & Sheward t/a Lubrite Dis-
tributors 1993 2 LCD 28 (LAC) is significant:
an employee was a person who made over his or her capacity to produce to another, whereas an
independent contractor, by contrast, was a person whose commitment was the production of a
given result by his or her labour. In the first case what was transacted was the capacity to work,
whereas in the second case what was transacted was the product of it. This meant that the surren-
der of the capacity to work was what lay at the heart of the relationship between employee and
employer. The terms of the contract would determine the relationship, although the parties’ own
perception of their relationship and the manner in which the contract was carried out in practice
might, in areas not covered by the strict terms of the contract, assist in determining the nature of
the relationship.
In this case the “employee” had been offered a position as an independent agent to pro-
mote the products of the employer in a particular area. The Court was satisfied that the
object of the contract was not the rendering of personal services; neither was the intention
that the “employee” would “make over” or “surrender” his capacity to work. He was required
to produce a specified result. He was thus an independent contractor and not an employee.
Other factors considered by the Court in deciding that he was an independent contractor
included the following: he earned commission only; he was remunerated only when he pro-
duced results; he was not registered as an employee with the Department of Labour; no
deductions for tax purposes had been made; the control exercised over him was minimal;
he could take leave whenever he wanted; and he received no leave or sick leave pay.
See also Callanan v Tee-Kee Borehole Casings (Pty) Ltd & Another 1993 2 LCD 43 (IC); Liberty
Life Association of Africa Ltd v Niselow [1996] 7 BLLR 825 (LAC); Niselow v Liberty Life Associ-
ation of Africa Ltd (1998) 19 ILJ 752 (SCA); SABC v McKenzie [1999] 1 BLLR 1 (LAC); Gordon
v St John’s Ambulance Foundation [1997] 3 BLLR 313 (CCMA), [1997] 6 BLLR 785 (CCMA);
CMS Support Services v Briggs [1997] 5 BLLR 533 (LAC); Medical Association of SA v Minister of
Health & Another [1997] 5 BLLR 562 (LC); Opperman v Research Surveys (Pty) Ltd [1997] 6
BLLR 807 (CCMA); SATDU v Marine Taxi’s CC [1997] 6 BLLR 823 (CCMA); Board of Execu-
tors Ltd v McCafferty [1997] 7 BLLR 835 (LAC); LAD Brokers v Mandla [2001] 9 BLLR 993
(LAC); Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC); State Information Technology Agency
(Pty) Ltd v CCMA & Others (2008) 29 ILJ 2234 (LAC); Discovery Health Ltd v CCMA & Others
(2008) 29 ILJ 1480 (LC); “Kylie” v CCMA & Others (2010) 31 ILJ 1600 (LAC); Sanlam Life
Insurance Ltd v CCMA & Others (2009) 30 ILJ 2903 (LAC); De Lange v ABSA Makelaars (Edms)
Bpk (2010) 31 ILJ 885 (SCA); Pam Golding Properties (Pty) Ltd v Erasmus & Others (2010) 31
ILJ 1460 (LC); St Clair v CFS Aviation CC t/a Corporate Flight Services (2010) 31 ILJ 486
(CCMA); J & J Freeze Trust v Statutory Council for the Squid & Related Fisheries of SA & Others
(2011) 32 ILJ 2966 (LC); Workforce Group (Pty) Ltd v CCMA & Others (2012) 33 ILJ 738 (LC).
Although the dominant impression test is generally accepted and applied nowadays, it
remains difficult to determine whether a person is in fact an employee. To aggravate the
situation employers have increasingly started to appoint persons as “independent contract-
ors” rather than employees in an attempt to escape the onerous liabilities brought about by
the various labour laws. If a person is an independent contractor and not an employee the
employer saves, for example, the contributions towards unemployment, injuries on duty
and skills development. Moreover, the employer is then not compelled to comply with the
BCEA or similar legal provisions and does not have to register the person as an employee
with the Department of Labour and SARS. In consequence, the independent contractor
does not enjoy legislative protection as legislation applies to employees only.
The ulterior motives of employers to appoint persons as independent contractors and
the resultant lack of legislative protection in such instances have been curbed in two ways:
• by court (or CCMA) decisions in terms of which the true nature of the relationship
between the parties needs to be determined; and
• by section 83A of the BCEA (mirrored by s 200A of the LRA).
Even if a person is described as an independent contractor in a contract, it remains neces-
sary to determine the true nature of the relationship between the parties. On numerous
occasions the courts have held that the label of “independent contractor” is not conclusive.
The realities of the relationship – and not the label – will determine whether the contract is
one of operarum or operis. See in this regard McKenzie v SABC [1996] 5 BLLR 635 (IC),
[1999] 1 BLLR 1 (LAC) and Building Bargaining Council (Southern & Eastern Cape) v Melmons
Cabinets CC & Another [2001] 3 BLLR 329 (LC).
Section 83A of the BCEA (and section 200A of the LRA), which took effect in August
2002, introduced a rebuttable presumption of who an employee is. Section 83A provides as
follows:
83A. Presumption as to who is employee
(1) A person who works for, or renders services to, any other person is presumed, until the con-
trary is proved, to be an employee, regardless of the form of the contract, if any one or more
of the following factors is present:
(a) the manner in which the person works is subject to the control or direction of another
person;
(b) the person’s hours of work are subject to the control or direction of another person;
(c) in the case of a person who works for an organisation, the person is a part of that organ-
isation;
(d) the person has worked for that other person for an average of at least 40 hours per
month over the last three months;
(e) the person is economically dependent on the other person for whom that person works
or renders services;
(f) the person is provided with tools of trade or work equipment by the other person; or
(g) the person only works for or renders services to one person.
(2) Subsection (1) does not apply to any person who earns in excess of the amount determined
by the Minister in terms of section 6(3).
(3) If a proposed or existing work arrangement involves persons who earn amounts equal to or
below the amounts determined by the Minister in terms of section 6(3), any of the contract-
ing parties may approach the CCMA for an advisory award about whether the persons in-
volved in the arrangement are employees.
The effect of this section is that a person who earns less than the BCEA threshold (deter-
mined by the Minister from time to time, currently R205 433-30 per annum) is presumed to
be an employee if any of the above indicators is present. The onus is on the employer to
prove the contrary. The net result of section 83A is that, if an employer fails to prove that a
person is an independent contractor, that person is deemed to be an employee. This
ultimately defeats the employer’s ulterior motive of circumventing the law and thereby
depriving the other person, who is in fact an employee, of the legislative rights and protec-
tion accorded employees.
Either party to the work arrangement may, in terms of section 83A(3) of the BCEA,
approach the CCMA for an advisory award about whether the person is an employee, but
only if the alleged employee earns less than the BCEA threshold amount.
In 2006 a code was promulgated to assist in determining whether a person is an employ-
1
ee. The Code of Good Practice: Who is an Employee is based, in the main, on the control
and dominant impression tests, the section 83A presumption and case law (see the Appen-
dix to this chapter).
In summary, to determine whether a person who is doing work for another is an “employ-
ee” or an independent contractor, the following must be considered:
• the definition of “employee” in the applicable statute;
• the dominant impression test;
• the Code of Good Practice; and
• if the alleged employee earns less than the BCEA threshold, section 83A of the BCEA (or
s 200A of the LRA).
It has already been mentioned that only employees enjoy legislative protection and have
access to labour dispute resolution forums such as the CCMA and the Labour Court. For a
person to be an employee a valid employment contract must exist and one of the require-
ments for a valid contract is lawfulness. This particular requirement received some atten-
tion in recent years because of constitutional prerequisites, the definition of “employee” in
the LRA and the concept of fairness, which is the cornerstone of Labour Law. It was always
accepted that a valid employment contract entails the rendering of lawful services – until a
prostitute decided to take the law head-on.
In “Kylie” v Van Zyl t/a Brigittes [2007] 4 BALR 338 (CCMA) Kylie, a sex worker, was em-
ployed by a massage parlour to perform sexual services for reward. She was dismissed for
alleged infractions of a strict regime of rules in the workplace. She referred a dismissal
dispute to the CCMA. The CCMA Commissioner ruled that the CCMA lacked jurisdiction
to arbitrate the dispute because her work was prohibited by the Sexual Offences Act and
that, for the same reason, her contract of employment was invalid. According to the CCMA
Commissioner, section 23 of the Constitution of 1996 and the LRA did not apply to workers
who did not have a valid and enforceable contract. Kylie took the CCMA ruling on review.
In “Kylie” v CCMA & Others [2008] 9 BLLR 870 (LC) the Labour Court accepted that
Kylie was an employee as envisaged in section 213 of the LRA. It was held that the defin-
ition of “employee” in section 213 is sufficiently wide to include workers without valid con-
tracts of employment. Although she performed illegal work, the relationship between Kylie
and her employer was undoubtedly an employment relationship. The Court, however, was
of the view that the real question was whether, as a matter of public policy, courts and other
tribunals should sanction illegal contracts by upholding the rights of the parties under
statutes and the Constitution. The issue was not the consequences of the lack of a valid con-
tract, but the effect this lack had on the powers of the tribunal or court called on to enforce
the parties’ claims. It was held that the fundamental principle was that courts would not
sanction or encourage illegal activities. The Court observed that a contract for the perform-
ance of illegal activities was contra bonos mores (against the good morals) and, therefore,
unenforceable under common law or labour legislation. It held that even though the
________________________
1 GN 1774 of 1 December 2006.

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

The contract of employment, like any other contract, must comply with the basic require-
ments for a valid contract. The general principles of the law of contract, and particularly
the principles applicable to a lease, are applicable mutatis mutandis.
The general rule is that formalities are not required for the conclusion of an employ-
ment contract. Consequently, the contract need not be reduced to writing in order to be
valid, although it is, of course, advisable to have a written agreement. Take note that, in
________________________
2 “Kylie” v CCMA & Others [2010] 7 BLLR 705 (LAC) par 40.
3 Discovery Health Ltd v CCMA & Others [2008] 7 BLLR 633 (LC) par 30.
4 The Employment Services Act 4 of 2014 regulates the employment of foreigners.
terms of section 29 of the BCEA, an employer is required to supply the employee with
written particulars of his employment, such as hours of work and remuneration; the BCEA,
however, does not require a written contract as such.
An employment contract may be concluded expressly by way of a verbal or written agree-
ment or it may be concluded tacitly. It is tacitly concluded where one can deduce from the
conduct of the parties that they intended to conclude a contract of employment.
Custom and practice can give rise to tacit terms in the contract. The court will accept
such tacit terms if: (a) they are an inevitable consequence of the agreement between the
parties; (b) they are not in conflict with other terms in the contract or with existing law; (c)
there is acceptable evidence for the existence of the custom; and (d) both parties were
aware of the custom or if it was common practice in the industry and area.
Employees are often given a letter of appointment when they are employed. Such a letter
may either include the terms of the contract in full or it may be attached to a contract, a
separate document. If the contract has been reduced to writing, the parol evidence rule
applies. The contract may, of course, be amended by subsequent agreement between the
parties.
In Ingwane v Med-Afrique [1997] 2 BLLR 210 (CCMA) it was emphasised that writing was
not a requirement for an employment contract and, therefore, that the absence of a letter
of appointment made no difference to the existence of the employment relationship.
Employment contracts have also entered the technological age and can be concluded by
electronic means such as SMS or e-mail. In Mncube v Transnet (2009) 30 ILJ 698 (CCMA) it
was held that an offer of employment made by SMS is a valid offer. In terms of section 22 of
the Electronic Communications and Transactions Act 25 of 2002 a contract concluded by
way of data messages is concluded at the time when and the place where the acceptance of
the offer is received by the offeror. A data message is regarded as having been received when
the complete message enters an information system designated or used for the purpose of
receiving data messages and is capable of being retrieved and processed by the person to
whom it has been addressed (in accordance with the reception theory). In practice this
means that if, for example, the offeree’s e-mail message containing his acceptance is dis-
played in the inbox of the offeror’s e-mail system, the contract is concluded, irrespective of
whether the offeror has opened or read the message. In Jafta v Ezemvelo KZN Wildlife (2009)
30 ILJ 131 (LC) the Court held that an e-mail message sent by J to E, accepting an offer of
employment, had not been received by E because it had not entered E’s information sys-
tem. By contrast, the Court accepted the SMS sent by J accepting the offer as a valid accept-
ance when it was received by an Ezemvelo employee. The contract was thus concluded
when the SMS was received.
2.4 Essentialia of the employment contract

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

When the contract is concluded, the parties must agree on the work the employee will be
required to perform. The employee is obliged to do the agreed work, as well as any unspeci-
fied task related to the main work, provided that it is not unlawful or beyond the area of
expertise of the employee.
When the employee is employed to perform a specified task and he is then required to
perform a different task, which constitutes a reduction in his status, he is entitled to resile
from the contract and claim damages. In Smith v Cycle and Motor Trade Co 1922 TPD 324 a
person was employed as a stores controller. Upon arrival at work one morning he found that
he had been demoted to an ordinary storeman but with retention of his previous salary scale.
The Court held that he was entitled to resile from the contract and claim damages. In Groe-
newald v Cradock Munisipaliteit en ’n Ander 1980 (4) SA 217 (E) the employee was a shift worker
at the municipal power station. When the power station closed down he was offered the
position of a parking metre attendant or assistant ambulance driver, with retention of his
salary. The employee rejected the offer and instituted legal action. The Court found that
the alternative positions resulted in a reduction of status and that he was not obliged to
accept the offer.
Although these cases were decided many years ago, the underlying principles still hold
true: the employer and employee must agree on the work to be done, the employee must
perform that work and related tasks and the employer cannot change the work substantial-
ly, unless there is justifiable reason to do so. In light of the developments of Labour Law
over the past few decades an employer who changes work without reason and without the
agreement of the employee may well fall foul of the fundamental right to fair labour prac-
tices.
2.4.2 Remuneration
The parties must agree on the remuneration to be paid to the employee at the conclusion
of the contract. Remuneration may be payable in cash and/or in kind (in natura). If remu-
neration is payable in money, the amount thereof need not be fixed, such as R5 000 per
month, but it must at least be reasonably ascertainable. It may, for example, be determined
by recourse to trade usage, i.e. the going rate payable for that job in that trade and area.
Remuneration may also consist of a share in the profits of the organisation or commission.
Where remuneration is paid in kind, a value must be attached thereto.
Common law does not prescribe minimum wages and the parties are at liberty to agree
in their contract on any amount. Legislation, on the other hand, prescribes minimum
wages. The most common ways of prescribing minimum wages are sectoral determinations
and collective agreements. And, since the National Minimum Wage Act 9 of 2018 (NMWA)
has come into effect on 1 January 2019 a minimum standard has been set and no contract,
sectoral determination or collective agreement may prescribe an amount less than the
national minimum.
2.5 Conditions of employment

Common law does not prescribe any conditions of service and the parties are at liberty to
negotiate matters such as hours of work, wages or salaries, leave and so on. The parties can,
for example, agree on the employee working 14 hours per day at a rate of R10 per hour and
taking unpaid leave. Legislation has, of course, curbed the free negotiation of employment
conditions so that an employer and employee, while still able to negotiate, can only agree
on terms and conditions within the parameters of the labour laws.
At common law any absence from work is unpaid. The rule of “no work, no pay” applies,
unless the parties agree otherwise.
Holiday or annual leave is, in terms of common law, a privilege. This means that an em-
ployee is not as a matter of course entitled to any paid holiday leave. The employer and
employee may, however, upon conclusion of the contract agree that the employer will grant
the employee a certain number of days’ holiday leave. This leave may then be taken only
after completion of a certain prescribed period (e.g. a year’s service). Leave may not be
taken on a pro rata basis during the year. Should the services of the employee be termin-
ated before the prescribed period (e.g. a year) expires, he will not be entitled to pro rata
payment. Thus, the employee loses all right to payment in respect of leave not taken when
leaving the service of the employer. If, however, the employer requested the employee not to
take his leave, the latter will be entitled to payment for leave not taken. In terms of the
common law, notice to terminate service may not run concurrently with holiday leave.
In terms of legislation an employee is entitled to paid holiday (annual) leave. Section 20

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

An employer has a number of duties arising from the contract of employment. Should the
employer refuse or fail to comply with these obligations it would be committing breach of
contract and the employee then has certain remedies at his disposal (see par 2.7 below).
The duties of the employer are the following:
• to accept the employee into his service

• to provide the employee with work
DUTIES • to pay the agreed remuneration
OF
EMPLOYER • to pay a quantum meruit
• to provide safe working conditions
• to comply with statutory duties
2.6.1 To accept the employee into his service

Because the rendering of services is a prerequisite for the payment of remuneration, it
follows that the employer will be committing material breach of contract should it fail to
take the employee into his service. The employee will then be entitled to claim damages
amounting to his actual loss, in other words, the amount he would have earned in respect
of the incomplete part of his period of service. It appears to be virtually incomprehensible
that an employer will employ someone and then not give him any work to do. Reported
cases show, however, that this is not quite as singular as it may seem.
2.6.2 To provide the employee with work
From South African case law it appears that the employer is generally not legally bound to
provide work to the employee. The employer therefore does not commit breach of contract
if it fails to give work to the employee to do, provided it pays the employee the agreed
remuneration.
Under some circumstances, however, an employer is obliged to provide work and a fail-
ure to do so would constitute a breach of contract:
• where the amount of the remuneration is based on the amount of work done, as in the
case of someone doing piece work or a salesman;
• where the failure to provide work brings about a reduction in the status of the employee;
• where the employer has undertaken to train the employee in a certain profession or
trade;
• where a person’s earning capacity is linked to the publicity which he receives from the
work he does, for example an actor. This person’s employer must provide him with work
in order to ensure his professional success.
It should be noted that, in terms of the LRA, an employer is allowed to withhold work from
employees in the form of a lock-out, which is the employer’s counterpart of the employees’
right to strike.
2.6.3 To pay the remuneration agreed upon

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

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

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

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

If the employer fails to comply with any of its obligations or fails to comply with them prop-
erly, it is in breach of contract and the employee has certain remedies against the employer.
• cancellation of the employment contract

REMEDIES • claiming specific performance
OF
EMPLOYEE • claiming damages
• refusal to work
• statutory remedies
2.7.1 Cancellation
Material breach of contract by the employer allows the employee to resile from the contract.
Examples of a material breach include a reduction in status and the non-payment of the
agreed remuneration.
When the employee claims cancellation of the contract, it amounts to a summary termin-
ation of the contract, as opposed to the employee giving due notice of termination.
If the breach of contract is not material, cancellation of the contract is generally not an
available remedy and the employee may possibly succeed with a claim for damages.
2.7.2 Specific performance

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

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

Despite labour legislation and its prescripts, the common law remedies referred to above
are still available to employees if they want to rely on an employer’s breach of contract.
Labour legislation, however, provides for remedies in a variety of instances where an
employee does not have to prove breach of contract on the part of the employer, but only
that the employer had acted unfairly. The most common of these are unfair dismissals and
unfair labour practices for which the LRA prescribes particular remedies, namely reinstate-
ment, re-employment or compensation.
Thus, if an employee wishes to pursue a contractual claim, proceedings must be institu-
ted in a court of law with jurisdiction, such as the Magistrates’ Court or High Court. If,
however, the employee wishes to rely on the alleged unfairness perpetrated by the employ-
er, the dispute resolution path in the LRA must be followed and the LRA remedies will
apply.
The BCEA allows an employee who alleges that his employer has not paid him, or has
underpaid him, to approach the Department of Labour or the CCMA for assistance to get
payment.
2.8 The employee’s duties

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

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

The employee must obviously be able to do the work for which he was appointed because,
at conclusion of the contract, he tacitly guarantees that he is suitable for the work. The
courts have held that every contract of employment contains an implied warranty of reason-
able efficiency or competence. The standard of competence that the employer is entitled to
expect will depend on factors such as the capacity in which the employee is engaged, his
level of skills and training and any promises made by the employee concerning his skills
and abilities.
If the employee proves to be unsuitable for the work, he breaches the warranty of com-
petence, thereby committing breach of contract. According to the labour courts he may,
however, not be summarily dismissed. A single act of incompetence is normally not suffi-
cient to justify a dismissal. The employee must first be granted an opportunity to improve
his performance and the employer must give him proper orders and possibly also training.
It is customary for employees to be appointed for a probationary period. A provision in
the employment contract allowing for probation makes it possible for an employer to ter-
minate the contract upon expiry of the probationary period if the employee’s performance
does not meet the required standards. At common law nothing prevents the employer from
terminating the contract on or before expiry of the probationary period by simply giving
notice of termination. In terms of the LRA, however, the probationary employee whose
performance is unsatisfactory may not be given notice and have his contract terminated,
unless a fair procedure has been followed. The employer is required to evaluate the em-
ployee’s performance regularly and give assistance, guidance and training. If these
measures do not aid in improving the employee’s performance, the employee must be
afforded an opportunity to state why he should not be dismissed, in other words, the
employee must have an opportunity to defend himself.
2.8.3 To obey the employer

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

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

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

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

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

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

REMEDIES • specific performance
OF
EMPLOYER • damages
• statutory remedies
2.9.1 Summary dismissal

Summary dismissal is the termination of an employee’s services without giving the pre-
scribed notice and is, therefore, a cancellation of the contract, also called summary termin-
ation of the contract or, in every day parlance, dismissal. The employer is entitled to dismiss
the employee summarily when the latter has committed a material breach of contract, for
example, where the employee’s behaviour amounts to a repudiation of the contract of
employment or constitutes positive malperformance of a serious nature.
The following common law grounds for the summary dismissal of an employee have crys-
tallised:
• incompetence to do particular work;
• serious negligence when performing duties;
• refusal to work;
• unreasonable absences from work without reason or consent or unreasonable absences
as a result of illness. This includes persistent late arrival for work despite various previous
warnings;
• disobedience of reasonable commands within the purview of the employee’s work;
• rude behaviour to the employer;
• secret profits or commissions made at the expense of the employer or competing with
the employer and thereby violating the relationship of trust;
• disclosure of trade secrets or the misuse of information obtained through his employ-
ment;
• dishonesty in the scope of his duties, for example fraud and theft. Dishonesty must be
proved;
• putting the employer’s property to private use;
• other forms of misconduct, such as drunkenness or assaulting co-workers or customers;
and
• insubordination, rebelliousness and any conduct undermining discipline or the employ-
er’s authority.
At common law only a valid reason for dismissal, like those mentioned above, is required.
The employer is not obliged to hold an investigation or hearing before dismissing an
employee. Dismissal can be effected with or without notice. Dismissal without notice is
referred to as summary dismissal.
In contrast, the LRA, in section 188, requires a valid reason and a fair procedure in order
to ensure a fair dismissal. An unfair dismissal is a breach of contract and infringes the
fundamental right of an employee to fair labour practices. This means the employer must
have a valid reason (e.g. serious misconduct) and follow a procedure in which the employ-
ee is afforded an opportunity to defend himself. A “fair procedure” invariably involves some
kind of disciplinary hearing.
When an employee is dismissed the employer is entitled to ask the employee to leave the
work premises. Should the employee refuse, the employer may not take the law into its own
hands and eject the dismissed employee; it will have to obtain a court order to achieve the
ejectment of the employee.
When an employee is dismissed he is, in terms of common law, entitled to any remuner-
ation still due to him for work done (unless his work is so wanting in quality that it can
validly be rejected by the employer). In terms of legislation a dismissed employee is entitled
to outstanding remuneration for time served and payment of all annual leave days to his
credit. If an employee is summarily dismissed he is not entitled to notice pay. If he is dis-
missed on notice he may be required to work during the notice period; alternatively, the
employer may exempt him from working the notice period but must then pay him in lieu of
notice.
2.9.2 Specific performance

In some instances specific performance will not be an appropriate order if an employee is
in breach of contract. It may be that the employee’s future conscientious performance of
his duties cannot be guaranteed or that the trust relationship between the employer and
employee has irretrievably broken down. The courts will, for example, be loath to compel a
deserting or thieving employee to return to his employer. In such cases the employer will be
entitled to damages only.
Specific performance may in other circumstances be the appropriate order to make. For
example, if employees participate in a strike the employer may ask the court to issue an
interdict to halt the strike. Similarly, if an ex-employee is subject to a restraint of trade, the
employer may obtain an interdict to stop the ex-employee from breaching the terms of the
restraint.
2.9.3 Damages
Whether the contract is cancelled or specific performance is demanded, the employer is
entitled to claim damages from the employee if the behaviour or negligence of the latter
causes damages or losses. On the same basis the employer may claim damages from the
employee if he abandoned his employment in a way which caused the employer losses. If
the employee abandons the work and thereby does not complete his tasks, he will not be
entitled to any remuneration – not even for the work completed – unless the remaining
portion of the period of service is so slight that damages will sufficiently compensate the
employer. The employer is then entitled to compensation based on enrichment. The onus
is on the employer to prove that the losses flowed from the employee’s breach of contract.
2.9.4 Statutory remedies

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

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

A contract of employment can be concluded for a limited duration or for the performance
of a specific task. An employee is, for example, employed for a specified period (e.g.
1 January until 30 June). Or, an employee is employed to design a suite of computer pro-
grams.
A contract of this nature is referred to as a “fixed-term contract” and comes to an end
when the specified period expires or when the task is completed. Notice is not required
because at conclusion of the contract the employee was informed that his employment
would be for a limited period or until the job is done.
As a general rule a fixed-term contract may not be terminated before the specified period
has expired or before the task has been completed, unless the employee’s conduct or cap-
acity or the employer’s operational requirements justify an early termination.
Where the employee continues in service, with the approval of the employer, after expi-
ration of the specified period or completion of the job, the contract is deemed to have been
tacitly renewed on the same terms.
A fixed-term contract offers little or no security to an employee and it is for this reason
that trade unions have for a considerable time objected to limited duration contracts. To
address the concerns surrounding fixed-term contracts, the legislature inserted section
198B in the LRA (with effect 1 January 2015).
5
Section 198B seeks to provide protection to lower income employees who are employed
for a limited duration.
An employee to whom section 198B of the LRA applies may not be employed in terms of
a fixed-term contract for more than three months, unless the work the employee is
employed to do is of a limited duration or the employer has a justifiable reason to fix the
period of employment (e.g. replacing an employee who is temporarily absent; temporary
increase in the volume of work; a student employed to gain practical work experience, etc.).
An employee on a fixed term may not be treated less favourably than permanent employees
and, if the contract does not meet the requirements of section 198B (i.e. the contract is not
genuinely a fixed-term contract as defined), the employee is deemed to be employed for an
indefinite duration.
2.10.3 By agreement
The parties may terminate the contract between them by mutual agreement.
2.10.4 By the death of the employee

The general rule is that the death of the employer does not terminate the contract of
employment, while the death of the employee terminates the contract due to impossibility of
performance because an employee is required to render personal services.
2.10.5 By insolvency
Prior to 2003 the insolvency of the employer terminated the contract of employment (s 38
of the Insolvency Act of 1936). In such a case an employee was entitled to claim damages
from the insolvent estate, i.e. he could claim his salary for a maximum period of two
________________________
5 Employees earning below the BCEA threshold, i.e. the threshold amount determined by the Minister in
terms of s 6(3) of the BCEA.
months and outstanding annual leave pay for a maximum period of 21 days (s 100 of the
Insolvency Act).
Because employees were left without recourse upon the employer’s insolvency, section 38
of the Insolvency Act was amended in January 2003 (see the Insolvency Amendment Act 33
of 2002, which came into operation on 1 January 2003). The effect of the amended section
38 is that employment contracts no longer terminate automatically upon the employer’s
insolvency.
The amended section 38 provides for the suspension of the employment contracts and, if
necessary, termination in a process akin to dismissal for the employer’s operational require-
ments (retrenchment).
In terms of the amended section 38 employment contracts are suspended with effect
from the date of the sequestration order. During the period of suspension an employee is
not required to render services, he is not entitled to any remuneration and no employment
benefits accrue to him.
The trustee (or liquidator) of the sequestrated estate may terminate the contracts of
employment only after he has complied with the requirements of section 38. He is required
to consult with, inter alia, any registered trade union whose members are likely to be affect-
ed by the termination of the contracts or with the employees themselves. (See section 38 of
the Insolvency Act and section 189 of the LRA for the specific hierarchy of persons who
must be consulted. Section 189 is discussed in chapter 17.) The purpose of the consultation
process is to endeavour to reach consensus on appropriate measures to save the whole or
part of the business of the insolvent employer. With the consent of the trustee, a creditor of
the insolvent employer may participate in the consultations.
The rationale behind the prescribed consultations is that, if the employer’s business can
be saved, all or some of the employees may continue in employment and will not lose their
jobs. If, however, it is not possible to save the business and thereby secure the continued
employment of the employees, the contracts of employment terminate 45 days after the
date of appointment of the trustee (or liquidator), unless the trustee (or liquidator) and an
employee have agreed on continued employment.
An employee whose contract has been suspended or terminated is entitled to claim com-
pensation from the employer’s insolvent estate for losses suffered as a result of the suspen-
sion or termination. An employee whose contract has been terminated is further entitled to
claim severance pay in terms of section 41 of the BCEA.
The insolvency of the employee does not terminate the employment contract, except
where an employee is prohibited from practising a particular profession in terms of the
Insolvency Act (s 23).
2.10.6 By the illness of the employee

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

If it is objectively impossible for the employee to perform, he is not committing breach of
contract and the contract of employment is terminated by the impossibility.
2.10.8 By cancellation (summary termination)

If one of the parties commits a material breach of contract, the other party is entitled to
resile from the contract, for example, the summary dismissal of an employee in the event of
serious misconduct.
2.10.9 Redundancy of post

The redundancy of a post offers a valid reason to the employer for terminating the services
of an employee, provided he gives the employee sufficient notice of such termination. A
post becomes redundant only when no employee can be required to perform the duties
attached to the post anymore. If, however, all or some of the duties attached to the post still
exist, the employer is guilty of a breach of contract if he terminates the services of the
employee. At common law no procedure is required before the contract is terminated, but
the LRA requires that the retrenchment procedures in sections 189 and 189A (where
applicable) be followed.
2.11 The employer’s delictual liability

As a rule an employer is liable to third parties for delicts committed by its employees, pro-
vided the delict was committed in the scope of the employee’s employment. This doctrine,
known as vicarious liability, is contentious because the general idea is that the person who
commits a delict should be held liable and not somebody else.
In order to hold the employer liable for the delicts of his employee, the following require-
ments must be proved:
• there must be an employer/employee relationship; and
• the delict must have been committed by the employee in the course of the performance
of his duties, that is, “in the scope of employment”.
2.11.1 Employer/employee relationship

Before the employer can be held liable for delicts committed by an employee, the existence
of an ordinary contract of employment (locatio conductio operarum) must be proved. Refer to
paragraph 2.2 above in this regard. The person must be an “employee” at the time the
delict is committed.
2.11.2 The delict must have been committed by the employee in the scope of
employment
The employer is not liable to third parties for all delicts committed by its employee, but
only for those committed in the scope of employment. It follows then that the employer’s
liability is dependent upon the employee having committed the delict in the course of the
performance of his duties.
Whether an act falls within the scope of an employee’s duties is a question of fact and
depends on the particular circumstances of each case. Over the years the courts have
developed the concept of “scope of employment” and identified the following cir-
cumstances as falling within the scope of an employee’s employment:
• If the delict is committed while the employee is actually working – i.e. while he is occu-
pied with the execution of his duties – he is obeying the orders of his employer and
doing his work. Should the employee in the process of working commit a delict which
causes damage to a third party, the employer is liable. In Hendrickz v Cutting 1937 CPD
417 the employee was a lorry driver. While performing his duties, he stopped at a filling
station for fuel. He lit a cigarette, causing a fire in which the pump attendant was
injured. The employer was held liable. In Minister of Justice v Khoza 1966 (1) SA 410 (A)
two police constables were going about their work, inter alia, guarding prisoners. One of
the constables aimed a pistol at the other in jest. The pistol went off accidently and the
second constable was injured. The employer was held liable.
• If a delict is committed while the employee is acting within the scope of his employment,
whether during or after working hours, his employer is liable. In Sauer NO v Duursema
1951 (2) SA 222 (D) a postman was driving a vehicle belonging to the post office without
the necessary authority. As a result of his negligence an accident occurred and another
vehicle was damaged. The employer was held liable because the trip undertaken was con-
nected with the delivery of mail – the work for which the postman had been employed.
In K v Minister of Safety and Security [2005] 8 BLLR 749 (CC) three policemen in full uni-
form, on duty and driving an official South African Police Service vehicle offered a woman
a lift home. On the way they stopped, raped her and left her at the roadside. The Court
held that the employer was liable for the damages suffered by the woman. See also F v
Minister of Safety and Security [2012] 3 BLLR 244 (CC).
• When an employee performs an illegal act while acting in the course of his duties, the
employer is liable for the delict committed. Therefore, the employer is liable when the
employee commits an illegal act, if compliance with the employer’s orders requires that
act. In Mkize v Martens 1914 AD 382 the employer supplied his two employees with food.
The employees made a fire to cook the food. The fire caused damage to a third party.
The court decided that the making of the fire was essential for the execution by the
employees of their duties and the employer was held liable.
• If an employee performs an act which has been prohibited by the employer, but which
nevertheless promotes the employer’s interests the employer is liable for the delict com-
mitted by the employee. In General Tyre & Rubber Co (SA) Ltd v Kleynhans & Another 1963
(1) SA 533 (N) the employee drove a tractor on a public road, contrary to the orders of
his employer. As a result of his negligence an accident occurred. The employer was held
liable for the damages caused to a third party. In Moghamat v Centre Guards CC [2004]
1 All SA 221 (C) the employee, a security guard, was not allowed to carry a firearm while
on duty. One night, while on duty, he had his personal firearm in his possession and
failed to put to it away. M was accidentally shot and suffered severe injuries. The Court
concluded that the security guard had been negligent and, because he was on duty when
the delict was committed, his employer was liable.
• When an employee commits a delict while partly promoting the interests of his employer
and partly his own, the employer will be liable. In Feldman v Mall 1945 AD 743 the
employee had to deliver goods and then immediately return to his place of work. On the
way back he deviated from the route to partake of drink with his friends. Later, on his
way back to his workplace, he knocked down and killed a pedestrian. The Court decided
that he had abandoned his work only partially to promote his own interests. He was, how-
ever, still promoting the interests of the employer because he had retained control of the
vehicle and was taking it back to work. The employer was held liable. The same viewpoint
was held in Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport 2000 (4) SA
21 (SCA) and Roux v Evkom [2002] 2 All SA 462 (T).
• When the employee totally abandons his work in order to promote his own interests, he
is acting outside the scope of his employment – he is “on a frolic of his own” – and his
employer will not be held liable for any delict committed by him; the employee is person-
ally liable. The reason for this is to be found in the fact that the delict has not been
committed in the course of the employee’s duties. In Rossouw v Central News Agency 1948
(2) SA 267 (W) the employee gave a lift to a hitch-hiker. As a result of the employee’s
negligence the hitch-hiker was injured. The Court decided that the giving of a lift had
nothing to do with the work of the employee. The employer was not held liable. In Carter
& Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A) the employee used his employer’s bicycle
to go to the market for private reasons. He knocked down and injured a pedestrian. The
Court found that the employee was promoting his own interests when the accident occur-
red. The employer was not held liable. In Ess Kay Electronics (Pty) Ltd & Another v First Na-
tional Bank of Southern Africa Ltd [2001] 1 All SA 315 (A) an employee of the bank issued
fraudulent bank drafts, causing the appellants some damage. The appellants argued that
the employee had been acting within the scope of his employment and wanted to hold
the bank (as employer) liable. The Court observed that the test was whether or not the
actions of the employee had been authorised. On the evidence the Court concluded that
the employee had failed to follow the bank’s stipulated procedures in issuing bank
drafts. Consequently, everything the employee did relative to the drafts was outside the
scope of his actual authority and the course of his employment. The employer was
not held liable. See also Energy Measurements (Pty) Ltd v First National Bank of South Africa
Ltd [2000] 2 All SA 396 (W). In Absa Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd [2001]
1 All SA 1 (A) the Court held that the theft of cheques by an employee from his employ-
er cannot be said to be an act carried out in the course and scope of employment. Theft
is committed solely for an employee’s own interest and, therefore, falls outside the scope
of his authority and employment. The employer cannot be held vicariously liable for the
actions of such a delinquent employee.
In PE v Ikwezi Municipality & Another [2016] 7 BLLR 723 (ECG) the Court noted that the
vicarious liability of an employer for the unlawful acts of their employees had been consid-
erably expanded since the adoption of the Constitution in 1996. In this case the plaintiff
was sexually molested by her superior during working hours. The molester was summoned
to a disciplinary hearing, found guilty and was given a final written warning and suspended
without pay. The plaintiff sued both the employer (municipality) and the molester, claim-
ing that the municipality was vicariously liable for the actions of the molester. The munici-
pality submitted that the molester was not acting within the scope of his duties and,
therefore, that the municipality could not be held liable. Furthermore, the municipality
had taken reasonable steps to protect the plaintiff from further harm by subjecting the
molester to disciplinary action. The Court observed that in molesting the plaintiff, the
molester had been acting solely for his own purposes and objectives. However, the molester
had been in a position of trust as a senior employee and the superior of the plaintiff. The
trust inherent in the relationship between him and the municipality established a causal
link between his employment and any wrongful act. When this trust was abused and
6
breached, so it was held, the employer is vicariously liable.
Before an employer can be held liable, the commission of a delict by the employee must
be proved. This means that the employee must have caused harm to another by his unlaw-
ful act or omission. The employer will be liable only for a delict which could be claimed
from the employee. The employer and his employee are liable as co-defendants in solidum.
Where the employer pays the full amount of the damages the amount can be recovered
from the employee.
2.11.3 The employer’s liability for the delicts of an independent contractor

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

A restraint of trade clause is commonly included in employment contracts (or a restraint
agreement accompanies a contract of employment). In terms of a restraint of trade an
________________________
6 Also see Minister of Defence v Von Benecke [2013] JOL 30736 (SCA).
employee is prevented from starting his own business in competition with his employer or
from working for the employer’s competitors for a specified period in a specified geograph-
ical area after leaving the employ of his employer.
A restraint is in fact restricting the freedom of the employee to conduct commercial
activities at his own discretion or to work for an employer of his choice. In terms of our
common law it is against public policy to restrict the freedom of another to conduct activ-
ities as he wishes and, therefore, a restraint agreement is unlawful and void.
It is necessary, however, that the employer’s interests be protected. Think of the situation
where an employee gains useful information about clients and trade secrets while working
for his employer. After resigning this employee starts his own business and will, in all likeli-
hood, use the information to pursue his own interests to the detriment of his ex-employer.
The ex-employer needs to be protected. Such protection is secured by way of a restraint of
trade agreement.
The courts have subscribed to the common law rule that a restraint is against public policy
and consequently void. However, the courts, realising that an employer’s interests need to
be protected, qualified the common law rule by deciding that if a restraint is reasonable, it is
valid and enforceable. In order to determine whether a restraint is reasonable the following
will be taken into consideration:
• the area and period of the restraint;
• whether a restraint agreement has been concluded merely to prevent healthy competi-
tion or whether it was concluded to genuinely protect the employer’s interests;
• the nature of the business; and
• whether the employee has been prevented by the restraint from utilising his own skills,
expertise and experience.
A restraint will, for example, be judged unreasonable if the employee is prevented from
using his own skills to generate an income. Similarly, a restraint will be void if the period
and/or area in which the employee may not conduct business similar to that of his former
employer’s is deemed unreasonable in relation to the latter’s business. Every case will be
judged on its own merits to determine the reasonableness, and hence the validity or other-
wise, of the restraint.
An interdict may be requested by an employer to prevent the ex-employee from breach-
ing the terms of the restraint agreement and, should the court find the restraint to be
reasonable, the interdict will be granted. If the restraint is found reasonable in general, but
only the area or the period is considered unreasonable, the court may reduce the area or
the period to ensure the reasonableness and, therefore, the validity of the agreement of
restraint.
The constitutionality of a restraint of trade has been tested on occasion and the courts
have found that a restraint is a justifiable limitation to a person’s right to engage freely in
any trade, occupation or profession, provided that it is reasonable and in public interest.
See Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A); Waltons Stationery Co
(Edms) Bpk v Fourie 1994 (4) SA 507 (O); Wespro (Cape Town) v Stephenson [1995] 4 BLLR 86
(IC); Fisher v Clinic Holdings Ltd [1995] 8 BLLR 27 (IC); Kotze & Genis (Edms) Bpk v Potgieter
1995 (3) SA 783 (C); Knox D’Arcy Ltd v Shaw 1996 (2) SA 651 (W); Fidelity Guards Holdings
(Pty) Ltd v Pearmain [1998] 3 BLLR 335 (SE).
2.13 The employer and third parties

The general rule is that a person is bound by a contract only if he himself agreed to it. An
employer can, however, be bound by a contract if someone acts as its agent or representa-
tive. The agent may of course not exceed the bounds of his authority.
Ordinarily an employee does not act as the representative or agent of his employer. A
contract may, however, provide that the employee acts as an agent in given circumstances
or the employee may be seen as an agent by the operation of the doctrine of estoppel.
According to the doctrine of estoppel the employer will be bound by a contract concluded
by its employee if the employer indicated to a third party, by words or implication, that the
employee was acting on its behalf. The third party must have acted on the strength of this
representation. Estoppel prevents the employer from denying that the employee was
authorised to act on his behalf. Consequently the employer will be held to the terms of the
contract.
Questions
Question 1
Discuss in detail, with reference to decided cases and other authority, how one will deter-
mine whether a person is an “employee” or an independent contractor. (20)
Question 2
Discuss the common law duty of an employee to maintain bona fides (good faith). (10)
Question 3
Ben was an assistant manager in the storeroom of Cytex (Pty) Ltd for ten years. One Mon-
day morning he was informed by the general manager that an assistant manager was no
longer required in the storeroom and that he would be transferred to the factory plant as a
supervisor. He would, however, retain his present salary.
Discuss Ben’s legal position in detail with reference to case law. (10)
Question 4
Mr Adonis Smith appoints three people to work as general labourers in his small car com-
ponent manufacturing company. He explains to them that he cannot afford to pay the
minimum wage as stipulated by the bargaining council. They are only too pleased to have a
job and agree to work for less than the prescribed minimum.
4.1 Explain whether such an agreement is valid and enforceable. (4)
Hint: A contract of employment must comply with the minimum terms of any applicable
legislation, a sectoral determination or collective agreement.
4.2 Assume that Mr Smith employed the labourers to work on his farm. Would he and
the labourers be at will to agree on any rate of pay per hour? (2)
Hint: Schedule 1 of the National Minimum Wage Act.
Question 5
An administrative assistant, Sebastian Stroud, is asked by a director of the company Stroud
works for to take a client to the airport in one of the company’s luxury German cars. On the
way back from the airport Stroud causes an accident due to his own negligence and both the
company car and the other person’s car are damaged. Assume that it will cost R20 000 to
repair the company car and R10 000 to repair the other car.
5.1 Can the other person claim R10 000 from the company to have his car repaired?
Give reasons for your answer. (5)
5.2 Assume that Stroud has to compensate the company for the damages to the company
car. Can this amount be deducted from his wages? Give reasons for your answer. (2)
Question 6
Andrew is working at XYZ Co as a representative, selling farming implements. His remuner-
ation consists of commission amounting to 12% of the selling price of every item sold. He
does not have to go to the office every day and he arranges his appointments to suit him.
He has to submit a monthly report on all sales at the end of each month. His job description
gives him a free hand as to the manner in which an item is sold, provided that if he sold
same for cash and the selling price exceeded R100 000, he had to get the written permis-
sion of his general manager. One Saturday morning Andrew meets with a farmer with
whom he has an appointment. The farmer buys irrigation equipment to the value of
R120 000 cash. Andrew concludes the transaction without contacting his manager for
permission. On his way back home he causes an accident in which a Mr Nel’s car is dam-
aged and he (Nel) is seriously injured.
6.1 Is Andrew an employee? Explain your answer with reference to the common law, the
presumption in section 83A of the BCEA and section 200A of the LRA and the Code
of Good Practice: Who is an employee? (20)
6.2 Would your answer differ if Andrew worked for a basic salary plus commission and his
job description compelled him to report every appointment he had arranged and
every sale he had concluded to his manager? Explain. (4)
6.3 Assume that Andrew is an employee. Mr Nel wishes to sue for medical expenses and
repair costs to his car. He approaches you for advice. Advise him. (5)
6.4 Assume that Andrew had gone to this farm for a personal visit (not for business) and
the accident (as described above) took place. Mr Nel wishes to sue for medical
expenses and repair costs to his car. Advise him. (5)
Question 7
Miss Sunshine works as a sex worker for Adult World CC. It is not in dispute that she per-
forms sex deeds for reward, works 12 hours a day, 7 days a week and lives in accommoda-
tion provided by the employer (as payment in kind). She is dismissed without a hearing and
for allegedly breaching rules relating to entertaining customers privately and not in the
name of the business. She wants to refer a dismissal dispute to the CCMA.
Advise Miss Sunshine of her prospects of success, giving reasons for your advice and con-
sidering the latest case law in this regard. (20)
Hint: See “Kylie” v Van Zyl t/a Brigittes [2007] 4 BALR 338 (CCMA); “Kylie” v CCMA & Others
[2008] 9 BLLR 870 (LC); “Kylie” v CCMA & Others [2010] 7 BLLR 705 (LAC).
Question 8
Ms Disco visited a nightclub with her boyfriend. In the early hours of the morning she
needed a lift home because she and her boyfriend had had a fight. A policeman on standby
duty, Mr Stalker, in casual clothes and in an unmarked police vehicle, saw Ms Disco walking
along the road. He stopped and offered her a lift home. Because she believed he was a
policeman, she trusted him and accepted his offer. On their way to her home Mr Stalker
assaulted and raped her. Can SAPS, Mr Stalker’s employer, be held vicariously liable for
what he did to Ms Disco? (10)
Hint: See F v Minister of Safety and Security [2012] 3 BLLR 244 (CC); PE v Ikwezi Municipality
& another [2016] 7 BLLR 723 (ECG).
Question 9
Breathe Easy (Pty) Ltd is a respiratory home care company which imports, rents, sells, mar-
kets and distributes respiratory equipment in a highly competitive industry. It distributes
equipment to patients who suffer from respiratory problems and has established long-term
relationships with many of them. Mpho used to be an employee of Breathe Easy. Her con-
tract of employment with the company contained both a confidentiality clause and a restraint
of trade. In terms of the contract she had agreed not to disclose any confidential infor-
mation, including trade secrets and clients’ names acquired during the course of her
employment. She further agreed not to approach or entice away any of Breathe Easy’s
customers or employees or to work for a competitor company for a period of 12 months
after leaving Breathe Easy. After her resignation Mpho joined Air For All (Pty) Ltd, a
company competing with Breathe Easy for a market share in the same industry.
Would Breathe Easy, in your opinion, be successful in relying on the restraint of trade to
which Mpho had agreed? What are Breathe Easy’s prospects of success in interdicting
Mpho from working for and disclosing confidential information to Air For All? (10)
Hint: See Continuous Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes & Another (2012) 33 ILJ
629 (LC).
Question 10
John Vikuluzi, a Burundian national, obtained refugee status in South Africa. While in the
country he obtained a degree in nursing and was officially informed that he could work as a
health professional. After obtaining endorsement of his right to work whilst retaining his
refugee status, he applied for a permanent position as a professional nurse at the Valentina
Hospital. The post was offered to him and he accepted it. After three weeks’ service in the
new position he was informed that he could only be employed on a fixed-term contract
because his refugee status was about to expire and it would be in contravention of the
applicable legislation to retain him on a permanent basis. Valentina Hospital accordingly
withdrew the offer of permanent employment, relying on a revised policy of the National
Health Care Council in terms of which only South African citizens who were fit and proper
persons could be appointed. John contended that the policy discriminated against foreign
nationals and sought reinstatement to the full-time position he had occupied.
Discuss John’s prospects of success. (10)
Hint: See Ndikumdavyi v Valkenberg Hospital & Others [2012] 8 BLLR 795 (LC); Discovery
Health Ltd v CCMA & Others [2008] 7 BLLR 633 (LC). Also refer to section 198B of the
LRA.
Appendix
GN 1774 of 1 December 2006
Code of Good Practice: Who is an Employee
PART 1
1. This Code of Good Practice is issued by NEDLAC in terms of section 200A(4), read with
section 203, of the Labour Relations Act 66 of 1995 (LRA).
2. This Code sets out guidelines for determining whether persons are employees. Its purpose
is –
(a) to promote clarity and certainty as to who is an employee for the purposes of the
Labour Relations Act and other labour legislation;
(b) to set out the interpretive principles contained in the Constitution, labour legislation
and binding international standards that apply to the interpretation of labour legis-
lation, including the determination of who is an employee;
(c) to ensure that a proper distinction is maintained between employment relationships
which are regulated by labour legislation and independent contracting;
(d) to ensure that employees – who are in an unequal bargaining position in relation to
their employer – are protected through labour law and are not deprived of these pro-
tections by contracting arrangements;
(e) to assist persons applying and interpreting labour law to understand and interpret the
variety of employment relationships present in the labour market including disguised
employment, ambiguous employment relationships, atypical (or non-standard) employ-
ment and triangular employment relationships.
Application
3. In terms of section 203(3) and (4) of the LRA, any person interpreting or applying one of
the following Acts must take this Code into account for the purpose of determining whether
a particular person is an employee in terms of –
(a) Labour Relations Act 66 of 1995 (LRA);
(b) Basic Conditions of Employment Act 75 of 1997 (BCEA);
(c) Employment Equity Act 55 of 1998 (EEA); or
(d) Skills Development Act 97 of 1998 (SDA).
4. The Code should also be taken into account in determining whether persons are employees
in terms of the Occupational Health and Safety Act 85 of 1993, the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 and the Unemployment Insurance Act
63 of 2001. In applying these Acts, it must be borne in mind that the definitions of an
employee in those statutes differ from that contained in the LRA. However, there are suffi-
cient similarities for the Code to be of considerable assistance in determining who is cover-
ed by these statutes. These statutes are discussed further in Part 6 of the Code.
5. Part 1 of this Code deals with the application of the Code and issues of interpretation.
6. Part 2 of this Code deals with the rebuttable presumption as to who is an employee in terms
of section 200A of the LRA and section 83A of the BCEA. Any person applying or interpret-
ing those sections must take this Code into account.
7. Part 3 of this Code, deals with the interpretation of the definition of “employee” contained
in the LRA, the BCEA, the EEA and the SDA.
8. Part 4 of the Code deals with determining the employment status of persons employed by
temporary employment services.
9. Part 5 of the Code deals with the principles of interpretation that are applicable to inter-
preting the statutory presumptions of employment and the statutory definitions of an em-
ployee.
10. Part 6 deals with the extent to which the Code is of assistance in determining employment
status for purposes of the Occupational Health and Safety Act 85 of 1993, the Compen-
sation for Occupational Injuries and Diseases Act 130 of 1993 and the Unemployment In-
surance Act 63 of 2001.
11. While every person applying or interpreting one of these statutes must take the Code into
account, the Code is not a substitute for applying binding decisions of the courts. The Code
therefore refers to many of the most important and helpful decisions of the courts on these
issues. (A table of cases cited together with their references is attached to the Code.)
PART 2
THE PRESUMPTION AS TO WHO IS AN EMPLOYEE
12. The 2002 amendments to the LRA and BCEA introduce a provision into each Act creating a
rebuttable presumption as to whether a person is an employee and therefore covered by
the Act. These provisions are found in section 200A of the LRA and section 83A of the
BCEA. These sections only apply to employees who earn less than a threshold amount
determined from time to time by the Minister of Labour in terms of section 6(3) of the
BCEA.
13. A person is presumed to be an employee if they are able to establish that one of seven listed
factors is present in their relationship with a person for whom they work or to whom they
render services. Before examining the seven factors, it is necessary to describe the general
operation of the presumption.
14. Subject to the earnings threshold, the presumption applies in any proceedings in terms of
either the BCEA or LRA in which a party (“the applicant”) alleges that they are an employ-
ee and one or more of the other parties to the proceedings disputes this allegation.
15. In order to be presumed to be an employee, an applicant must demonstrate that –
(a) they work for or render services to the person or entity cited in the proceedings as
their employer; and
(b) any one of the seven listed factors is present in their relationship with that person or
entity. (These factors are discussed in paragraph 18 of the Code.)
16. The presumption applies regardless of the form of the contract. Accordingly, a person
applying the presumption must evaluate evidence concerning the actual nature of the em-
ployment relationship. The issue of the applicant’s employment status cannot be deter-
mined merely by reference to either the applicant’s obligations as stipulated in the contract
or a “label” attached to the relationship in a contract. Therefore a statement in a contract
that the applicant is not an employee or is an independent contractor must not be taken as
conclusive proof of the status of the applicant.
17. The fact that an applicant satisfies the requirements of the presumption by establishing that
one of the listed factors is present in the relationship does not establish that the applicant is
an employee. However, the onus then falls on the “employer” to lead evidence to prove that
the applicant is not an employee and that the relationship is in fact one of independent
contracting. If the respondent fails to lead satisfactory evidence, the applicant must be held
to be an employee.
18. The presumption comes into operation if the applicant establishes that one of the following
seven factors is present –
(a) “the manner in which the person works is subject to the control or direction of another person”
The factor of control or direction will generally be present if the applicant is required
to obey the lawful and reasonable commands, orders or instructions of the employer
or the employer’s personnel (for example, managers or supervisors) as to the manner
in which they are to work. It is present in a relationship in which a person supplies
only labour and the other party directs the manner in which he or she works. In con-
trast, control and direction are not present if a person is hired to perform a particular
task or produce a particular product and is entitled to determine the manner in
which the task is to be performed or the product produced. It is an indication of an
employment relationship that the “employer” retains the right to choose which tools,
staff, raw materials, routines, patents or technology are used. Likewise, the fact that an
employer is entitled to take disciplinary action against the person as a result of the
manner in which the person works is a strong indication of an employment relation-
ship.
(b) “the person’s hours of work are subject to the control or direction of another person”
This factor will be present if the person’s hours of work are a term of the contract and
the contract permits the employer or person providing the work to determine at what
times work is to be performed. However, the fact that the contract does not deter-
mine the exact times of commencing and ending work does not entail that it is not a
contract of employment. Sufficient control or direction may be present if the contract
between the parties determines the total number of hours that the person is required
to work within a specified period. Flexible working time arrangements are not incom-
patible with an employment relationship.
(c) “in the case of a person who works for an organisation, the person forms part of that organi-
sation”
This factor may apply in respect of any employer that constitutes a corporate entity. It
does not apply to individuals employing, for instance, domestic workers. The factor
will be present if the applicant’s services form an integrated part of the employer’s
organisation or operations.
A person who works for or supplies services to an employer as part of conducting
their own business does not form part of the employer’s organisation. Factors indicat-
ing that a person operates their own business are that they bear risks such as bad
workmanship, poor performance, price hikes and time over-runs. In the case of employ-
ment, an employer will typically bear these types of risks.
(d) “the person has worked for that other person for an average of at least 40 hours per month
over the last three months”
If the applicant is still in the employment of the employer, this should be measured
over the three months prior to the case commencing. If the relationship has termin-
ated, it should be measured with reference to the three-month period preceding its
termination.
(e) “the person is economically dependent on the other person for whom he or she works or ren-
ders services”
Economic dependence will generally be present if the applicant depends upon the
person for whom they work for the supply of work. An employee’s remuneration will
generally be his or her sole or principal source of income. On the other hand, eco-
nomic dependence will not be present if the applicant is genuinely self-employed or is
running their own business. A self-employed person generally assumes the financial
risk attached to performing work. An important indicator that a person is genuinely
self-employed is that he or she retains the capacity to contract with others to work or
provide services. In other words, an independent contractor is generally free to build
a multiple concurrent client base while an employee is bound to a more exclusive re-
lationship with the employer.
An exception to this is the position of part-time employees. The fact that a part-time
employee is able to work for another employer in the periods in which he or she is
not working does not affect his or her status as an employee. Likewise, the fact that a
full-time employee may be able to take on other employment that does not conflict
with the interests of their employer in their spare time is not an indication of self-
employment.
(f) “the person is provided with the tools of trade or work equipment by the other person”
This provision applies regardless of whether the tools or equipment are supplied free of
cost or their cost is deducted from the applicant’s earnings or the applicant is required
to re-pay the cost. The term “tools of trade” is not limited to tools in the narrow sense
and includes items required for work such as books or computer equipment.
(g) “the person only works for or renders services to one person”
This factor will not be present if the person works for or supplies services to any other
person. It is not relevant whether that work is permitted in terms of the relationship
or whether it involves “moonlighting” contrary to the terms of the relationship.
19. If any one of the factors listed in the preceding paragraph is established, the applicant is
presumed to be an employee. An “employer” that disputes that an applicant is an employee
must be given the opportunity to rebut the presumption by leading evidence concerning
the nature of the working relationship. After hearing this evidence, and any additional evi-
dence provided by the applicant or any other party, the presiding officer must rule on
whether the applicant is an employee or not.
20. In cases in which the presumption is not applicable, because the person earns above the
threshold amount, the factors listed in the presumption (and discussed above) may be used
as a guide for the purpose of determining whether a person is in reality in an employment
relationship or is self-employed.
PART 3
INTERPRETING THE DEFINITION OF AN EMPLOYEE
21. The LRA defines an employee as –
“(a) any person, excluding an independent contractor, who works for another person
or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the
business of an employer,
and ‘employed’ and ‘employment’ have meanings corresponding to that of ‘employee’”.
22. The interpretation given to the term “employee” by the courts prior to the insertion into
the LRA of the presumption as to who is an employee, remains relevant. This is so be-
cause –
(a) the presumption only applies to employees who earn less than the earnings threshold
determined by the Minister;
(b) in the case of employees who earn less than the threshold amount, the employer may
lead evidence to rebut the presumption, and establish that they are not an “employee”.
For example, if the person who claims to be an employee establishes that he or she
has worked for the other person for an average of at least 40 hours over the last three
months, he or she must be presumed to be an employee. The “employer” may, how-
ever, lead evidence that that person is an independent contractor engaged to perform
a particular task. The court or tribunal will then have to determine whether that per-
son is an employee.
23. Sub-paragraph (a) of the definition of an “employee” in the LRA includes any person who
works for another person and who receives, or is entitled to receive, remuneration, unless
that person is an independent contractor. In general terms, this reflects the common law
distinction between employees and independent contractors.
24. Sub-paragraph (b) contemplates that other categories of persons who assist in carrying on
or conducting businesses also fall within the statutory definition of an “employee”. Sub-
paragraph (b) has the consequence that persons who are not engaged in terms of a con-
tract of employment may nevertheless be statutory employees. The courts have not yet
delineated the precise ambit of persons who should be classified as employees because they
fall within the terms of sub-paragraph (b).
25. In 1970 the then Appellate Division4 interpreted wording similar to that contained in sub-
paragraph (b) and concluded that it did not include persons who work for another as an
independent contractor. While the courts have not delineated the precise categories of
employees who will be covered, it has been held that this part of the definition contem-
plates the assistance that a person may render to a person other than their employer. A cat-
egory of persons who clearly fall within the terms of sub-paragraph (b) are unpaid workers
who work for an employer.
When does a person become an employee?

26. The definition of an “employee” includes a person who has concluded a contract of employ-
ment to commence work at a future date. Accordingly, it is not a requirement that the per-
son has commenced work in order to be classified as an employee in terms of labour
legislation.
Distinguishing between an employee and an independent contractor
27. When deciding whether a person is an employee rather than an independent contractor,
the courts follow an approach usually referred to as the “dominant impression” test. In
terms of this approach, it is necessary to evaluate all aspects of the contract and the rela-
tionship and then make a classification based on the “dominant impression” formed in that
evaluation. Accordingly, there is no single factor that decisively indicates the presence or
absence of an employment relationship. In this regard, the approach differs from that used
when applying the presumption as the presumption comes into play if one of the listed cri-
teria is present. That there is no single decisive criterion that determines the presence or
absence of an employment relationship does not mean that all factors should be given the
same weighting.
28. To determine whether a person is an employee, our courts seek to discover the true rela-
tionship between the parties. In certain cases, the legal relationship between the parties
may be gathered from a construction of the contract that the parties have concluded. How-
ever, in practice, an interpretation of the wording of the contract will only determine the
matter definitively if the parties expressly admit that the contract is consistent with the reali-
ties of the relationship or elect not to lead evidence concerning the nature of the relation-
ship. The parol evidence rule that prevents oral evidence being lead to interpret a contract,
has no application in determining whether or not a person is an employee for the purposes
of labour legislation.
29. However, the contractual relationship may not always reflect the true relationship between
the parties. In these cases, the court must have regard to the realities of that relationship,
irrespective of how the parties have chosen to describe their relationship in the contract.
Adjudicators should look beyond the form of the contract to ascertain whether there is an
attempt to disguise the true nature of the employment relationship or whether there is an
attempt by the parties to avoid regulatory obligations, such as those under labour law or the
payment of tax. Our courts have frequently noted that the inequality of bargaining power
within an employment relationship may lead employees to agree to contractual provisions
that do not accord with the realities of the employment relationship. This is particularly
important in the case of low paid workers who may have agreed to be classified as inde-
pendent contractors because of a lack of bargaining power.
30. Disguised employment is a significant reality in the South African labour market and has
been dealt with in a number of reported decisions. The Employment Relationship Recom-
mendation, 2006 of the International Labour Organisation states that a “disguised employ-
ment” relationship occurs when the employer treats an individual as other than an employee
in a manner that hides his or true legal status as an employee”. It is an established principle
of our law that the label attached to a contract is of no assistance where it is chosen to dis-
guise the relationship. A contract that designates an employee as an independent contractor,
but in terms of which the employee is in a subordinate or dependent position, remains a
contract of service. In other cases, employers have claimed that a person who was formerly
an employee has been “converted” into an independent contractor. If the person has previ-
ously performed the same or similar work as an employee, this is a very strong indication
that he or she remains an employee. Likewise, the fact that other employees employed by
the same employer, or by other employers in the same sector, to perform the same or simi-
lar work under similar conditions are classified as employees may be a factor indicating that
the person is an employee.
31. It is consistent with the purposes of the LRA and other labour legislation to classify as em-
ployees, workers who have agreed to contracts purporting to classify them as independent
contractors. The fact that a person provides services through the vehicle of a legal entity
such as a company or a closed corporation does not prevent the relationship being an
employment relationship covered by labour legislation. It is necessary to look beyond the

legal structuring to ascertain the reality of the employment relationship and determine
whether the purpose of the arrangement was to avoid labour legislation or other regulatory
obligations. However, where a person has made representations to an agency such as the SA
Revenue Services that they are not an employee in order to gain tax benefits, it may be
appropriate for a court or arbitrator to refuse to grant them relief on the basis that they
have not instituted the proceedings with “clean hands”.
Factors
32. In the initial decision adopting the “dominant impression” test, the then Appellate Division
listed six factors to distinguish a contract of employment from a contract for services con-
cluded by an independent contractor. These factors, which are frequently cited in judg-
ments, are tabulated below and discussed in turn. These six factors are not a definitive listing
of the differences between the two types of contract.
Employee Independent Contractor
1. Object of the contract is to render personal Object of contract is to perform a specified

services. work or produce a specified result.
2. Employee must perform services personally. Independent contractor may usually perform
through others.
3. Employer may choose when to make use of Independent contractor must perform work
services of employee. (or produce result) within period fixed by
contract.
4. Employee obliged to perform lawful Independent contractor is subservient to the
commands and instructions of employer. contract, not under supervision or control of
employer.
5. Contract terminates on death of employee. Contract does not necessarily terminate on
death of employee.
6. Contract also terminates on expiry of Contract terminates on completion of work or
period of service in contract. production of specified result.
Rendering of personal services

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

36. A key defining feature of an employment relationship is that the employee is required to per-
form services personally when required to do so by the employer. This has been described
by the courts as the employee being “at the beck and call” of the employer. An independent
contractor need not perform the service personally and may use the services of other people,
unless the contract expressly provides otherwise. Accordingly, a contractual provision
requiring a contractor to perform personally does not always mean that the relationship is
one of employment. Similarly, the fact that an employee may be permitted or required to
arrange a substitute during absences does not in itself imply he or she is an independent
contractor.
37. The fact that a person employs, or is entitled to employ, other people to assist in perform-
ing the allocated tasks will not always be inconsistent with an employment relationship,
although it is an indication that the relationship is one of independent contracting. In
some sectors of the economy, it is a practice for sub-contractors to be engaged to work and
required to recruit other workers to assist them. This requirement does not in itself exclude
the sub-contractors from the possibility of being classified as employees. It will still be neces-
sary to examine the relationship between the principal and sub-contractor, as well as the
relationship between the principal and the persons engaged by the sub-contractor, to ascer-
tain if the relationship is one of employment. Depending upon an examination of all the
factors, including, for instance, the extent of control exercised by the principal sub-
contractor, it is feasible that both the sub-contractor and the workers that he or she has en-
gaged may be employees of the principal contractor. A relevant factor would be the extent
to which the employer exercises control over a decision to terminate the services of persons
engaged by the sub-contractor.
Employer may choose when to make use of services of employee

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

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

42. The fifth of the original characteristics suggested that a contract of employment terminates
on the death of an employee, while the death of an independent contractor does not neces-
sarily terminate the relationship. It has been observed that this distinction may be of limited
value as the death of an individual who is an independent contractor may terminate the
relationship.
Termination of contract on expiration of period of service

43. The sixth characteristic is that a contract of service terminates on the expiration of the
period of service while a contract of work terminates on completion of the relevant work or
task. Again, this distinction is of very little practical value in dealing with difficult cases. It is
not uncommon for the life of a contract of employment to be defined by reference to a
project on which an employee is engaged.
Other characteristics of a contract of employment

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

45. A worker’s remuneration and benefits may assist in determining their employment status.
The fact that an employee receives fixed payment at regular intervals which is made regard-
less of output or result tends to be a strong indication of an employment relationship. This
type of payment regime would generally be inappropriate for persons who are genuinely
self-employed.
46. Likewise, the fact that a person is a member of the same medical aid or pension scheme as
other employees of the employer is an indication that they are an employee. Other factors
which may be indicative of an employment relationship are –
(a) the inclusion in a contract of payments in kind for items such as food, lodging or
transport;
(b) the inclusion in a contract of provision for weekly rest periods and annual leave will
usually be consistent with an employment relationship;
(c) the provision of benefits that are designed to reward years of service with their
employer.
47. Many employees receive variable payments that depend on their performance, such as com-
missions or bonuses based on productivity, attendance or other factors. The receipt of vari-
able payments in this form is not inconsistent with an employment relationship. The fact
that an employee does not receive a conventional salary or wage package, or does not have
the same medical aid or pension as other employees, should not be relied upon as the only
basis for deciding that he or she is or is not an employee.
48. It is not inconceivable that a remuneration package can be structured to create an appear-
ance of an independent contracting relationship which is at variance with the underlying
nature of the employment relationship. However, the manner and method of payment may
be one factor along with others that lead to a conclusion that a person is not an employee.
Provision of training
49. The provision by an employer of training in the employer’s methods or other aspects of its
business is generally an indication of an employment relationship. Usually, a genuinely self-
employed person would be responsible for ensuring their own training. However, provision
of training as part of a contractual arrangement is not necessarily inconsistent with a rela-
tionship of independent contracting.
Place of work
50. The place at which work takes place may sometimes be taken into account as a factor deter-
mining the nature of an employment relationship. However, great caution needs to be taken
in using this factor. The fact that a person works regularly at the employer’s premises and
has no other place of work can be an indication of an employment relationship. However,

this might not be the case where the work is of such a nature (for instance, repairs to ma-
chinery or equipment) that it has to be performed at the employer’s premises or if the con-
tractor leases premises from the employer independently of its contract for work or services.
The fact that a person does not work at the employer’s premises is not necessarily incon-
sistent with an employment relationship. It is conceivable that homeworkers, working from
their own premises or those of fellow employees, are employees because of factors such as
the extent of control that the employer exercises over the manner in which they work.
Conclusion
51. The determination by a court or tribunal as to whether a person is an employee or an in-
dependent contractor has important consequences. In particular, independent contractors
are not afforded the protection of labour legislation.
52. Courts, tribunals and officials must determine whether a person is an employee or inde-
pendent contractor based on the dominant impression gained from considering all relevant
factors that emerge from an examination of the realities of the parties’ relationship.
PART 4
EMPLOYEES OF TEMPORARY EMPLOYMENT SERVICES
53. The LRA and the BCEA specifically regulate the employment of persons who are procured
for, or provided to, a client by temporary employment services. Temporary employment
services are one type of the wider category of triangular employment relationships. A tem-
porary employment service is a person or business who –
(a) procures or provides employees to perform work or render services for a client; and
(b) remunerates those employees.
54. Both of these elements must be present for the person providing or procuring the employ-
ees to fall within the definition of a temporary employment service.
55. An arbitrator or court which is required to determine whether section 198 of the LRA or
section 83 of the BCEA is applicable must be satisfied that the relationship between the
client and the temporary employment service is a genuine arrangement and not a subter-
fuge entered into for the purpose of avoiding any aspect of labour legislation.
56. Whether or not an individual supplied to a client by a temporary employment service is an
employee of the client or an independent contractor must be determined by reference to
the actual working relationship between the worker and the “client” for whom the worker
provides services or works. The relationship between the worker and the temporary employ-
ment service is relevant to the extent that it may give some indication of the relationship
between the worker and the client. The relationship between the worker and the client must
be assessed in the light of the normal criteria used to determine the existence of an employ-
ment relationship. Therefore, for example, it would be appropriate to examine factors such
as the extent to which the client issues instructions to the worker or any other relevant fac-
tor. The presumption of employment is applicable to cases involving persons engaged by
temporary employment services, if the employees earn less than the prescribed earnings
threshold.
57. If it is found that the individual has an employment relationship with the client, then for
the purposes of the LRA and the BCEA –
(a) the individual is an employee of the temporary employment service;
(b) the temporary employment service is the individual’s employer.
58. However, the client is jointly and severally liable for any contravention by a temporary em-
ployment service of any terms and conditions of employment in a bargaining council col-
lective agreement, an arbitration award, or any sectoral determination or provision of the
BCEA. In addition, in terms of section 57(2) of the Employment Equity Act, the client and
the temporary employment service are jointly and severally liable for any act of discrimin-
ation committed by the temporary employment service on the express or implied instruc-
tions of the client.
PART 5
INTERPRETATION OF LABOUR LEGISLATION
59. Any person who is considering the application of either the presumption of employment or
the definition of an employee in a particular statute is engaged in the interpretation of that
statute. Accordingly, they must be mindful of the approach that must be adopted to the inter-
pretation of labour legislation.
60. Section 3 of the LRA provides that any person applying the Act must interpret its provi-
sions –
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the Republic.
61. The Constitutional Court has stated that section 3 of the LRA is an express injunction to
interpret the provisions of the LRA purposively. A “purposive” approach to interpretation
considers a statutory provision broadly so as to give effect to the Constitution and to the
underlying purpose of the statute. This may result in a generous interpretation of the rele-
vant provision.
62. In order to interpret labour legislation in compliance with the Constitution, a commissioner,
arbitrator or judge must interpret its provisions in a way that ensures the protection, pro-
motion and fulfilment of constitutional rights, in particular the labour rights contained in
section 23 of the Constitution. If more than one interpretation can be given to a provision,
the decision-maker must choose the interpretation that best gives effect to the Constitution,
provided this does not unduly strain the language of the statute or infringe any protected
right. The Labour Appeal Court extended the literal construction of the definition of an
employee to include persons who have concluded contracts of employment to commence
at a future date because a literal translation resulted in gross hardship, ambiguity and
absurdity. The Constitutional Court has noted that security of employment is a core value of
the LRA and this should be taken into account in determining whether a person is an
employee and therefore entitled to protection against unfair dismissal.
63. Section 39(2) of the Constitution requires that “when interpreting any legislation, and
when developing the common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights”. The Constitutional Court has
confirmed that the common law must be interpreted in a way that develops the common
law and ensures that it is consistent with constitutional principles.
64. Section 23 of the Constitution establishes the fundamental rights in respect of labour
relations. In particular, section 23(1) and (2) provide that –
“(1) Everyone has the right to fair labour practices
(2) Every worker has the right –
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.”
65. The Constitutional Court has confirmed that the major source of South Africa’s public
international law obligations in respect of labour law, is the Conventions and Recommen-
dations of the International Labour Organisation (ILO). Two supervisory bodies ensure the
application and observation of these Conventions: the Committee of Experts on the Appli-
cation of Conventions and Recommendations, and the Freedom of Association Committee
of the Governing Body of the ILO.
66. In certain instances, these bodies have expressed views on the categories of workers covered
by particular Conventions. Article 2 of the Convention concerning Freedom of Association
and Protection of the Right to Organise 87 of 1948 guarantees the right of “workers and
employers without distinction whatsoever, to establish and join organisations of their own
choosing, without prior state authorisation.” The Freedom of Association Committee has
held that the criteria for determining whether persons are covered by Convention 87 is not
based on the existence of an employment relationship and self-employed workers in gen-

eral should enjoy the right to organise. South Africa has ratified Convention 87 and com-
pliance with its provisions therefore constitutes a public international law obligation.
67. The ILO has adopted an Employment Relationship Recommendation that addresses issues
of criteria that define an employment relationship, as well as indicators that are associated
with an employment relationship. A copy of the Recommendation is attached to this Code.
68. Section 3(d) of the Employment Equity Act specifically provides that the Act should be
interpreted in compliance with the ILO’s Discrimination (Employment and Occupation)
Convention 111 of 1958.
PART 6
INTERPRETATION OF THE DEFINITION OF AN EMPLOYEE IN OTHER LEGISLATION
ADMINISTERED BY THE MINISTER OF LABOUR
Unemployment Insurance Act 63 of 2001

68. For the purposes of the Unemployment Insurance Act 63 of 2001, (UIA) an employee is –
“any natural person who receives remuneration or to whom remuneration accrues in
respect of services rendered or to be rendered by that person, but excludes any inde-
pendent contractor”;
Persons applying or interpreting the UIA should take Parts 2 and 3 of this Code into
account when deciding whether a person is an independent contractor and therefore
excluded from the ambit of the Act.
Compensation for Occupational Injuries and Diseases Act 130 of 1993
69. For the purposes of the Compensation for Occupational Injuries and Diseases Act an em-
ployee is –
“a person who has entered into or works under a contract of service or of apprentice-
ship or learnership, with an employer, whether the contract is express or implied, oral
or in writing, and whether the remuneration is calculated by time or by work done, or is
in cash or in kind, and includes –
(a) a casual employee employed for the purpose of the employer’s business;
(b) a director or member of a body corporate who has entered into a contract of ser-
vice or of apprenticeship or learnership with the body corporate, in so far as he
acts within the scope of his employment in terms of such contract;
(c) a person provided by a labour broker against payment to a client for the render-
ing of a service or the performance of work, and for which service or work such
person is paid by the labour broker;
(d) in the case of a deceased employee, his dependants, and in the case of an employ-
ee who is a person under disability, a curator acting on behalf of that employee;
but does not include –
(i) a person, including a person in the employ of the State, performing mili-
tary service or undergoing training referred to in the Defence Act, 1957
(Act 44 of 1957), and who is not a member of the Permanent Force of the
South African Defence Force;
(ii) a member of the Permanent Force of the South African Defence Force
while on “service in defence of the Republic” as defined in section 1 of the
Defence Act, 1957;
(iii) a member of the South African Police Force while employed in terms of
section 7 of the Police Act, 1958 (Act 7 of 1958), on “service in defence of
the Republic” as defined in section 1 of the Defence Act, 1957;
(iv) a person who contracts for the carrying out of work and himself engages
other persons to perform such work;
(v) a domestic employee employed as such in a private household;”
70. The central issue that will be raised when interpreting this definition is whether a person is
employed in terms of a contract of service and has not been specifically excluded in terms
of the definition. Again, persons interpreting and applying this definition should take Parts
2 and 3 of this Code into account.
Occupational Health and Safety Act, 85 of 1993
71. For the purposes of the Occupational Health and Safety Act 85 of 1993 (OHSA), an
employee is –
“any person who is employed by or works for an employer and who receives or is en-
titled to receive any remuneration or who works under the direction or supervision of
an employer or any other person”;
The definition differs substantially from that in other labour legislation. A person is an em-
ployee and therefore covered by OHSA, if they –
(a) are employed by, or work for, an employer and are entitled to receive remuneration;
or
(b) work under the direction or supervision of an employer or any other person.
Nevertheless, a person applying or interpreting the definition should take Parts 2 and 3 of
this Code into account when determining whether a person is “employed by or works for an
employer” or whether they “work under the direction or supervision of an employer”.
72. Unlike the position under the LRA and BCEA, a temporary employment service is not the
employer for the purposes of compliance with OHSA. The definition of an employer in
OHSA provides that a labour broker as defined in the LRA is not the employer of employ-
ees that it provides to a client. This provision must now be read as excluding temporary
employment service (as contemplated under the LRA and BCEA) from being the employer
for the purposes of OHSA. Accordingly, the client to whom a worker is supplied by a tem-
porary employment services must meet the obligation of an employer under OHSA.
PART
2
SOCIAL LEGISLATION
3
BASIC CONDITIONS OF EMPLOYMENT
& MINIMUM WAGES
3.1 Introduction
At common law the employment contract is viewed as an ordinary commercial contract,
voluntarily entered into by two parties, the employer and the employee (see Chapter 2).
The prospective employee enjoys the freedom to contract and if he wishes to commit
himself contractually to work, for example, for seven days a week and ten hours a day at a
pay rate of R5 per day, with no provision for holidays or sick leave it is his choice. This
places the employee in a weak and vulnerable position vis-à-vis his employer. He enjoys
little (or no) protection regarding hours of work, pay, annual and sick leave and other
conditions of employment that we know are required for the welfare of any human being.
The employer is in a much stronger position, can negotiate exploitative employment
conditions with the employee and can dismiss the employee almost at will.
Legislative intervention was necessary to guard against this kind of asymmetry and exploi-
tation in employment contracts. Minimum conditions of employment were enacted over
the course of many years to provide a degree of protection to employees and it was, and still
is, not permissible to ignore the minimums even if both the employer and employee are
willing to do so.
Immediately before the democratic elections in 1994, under the old dispensation, condi-
tions of employment and wages were regulated by two statutes: the Basic Conditions of
Employment Act 3 of 1983 (BCEA) and the Wage Act 5 of 1957. The BCEA established
minimum conditions of employment, in the main providing for daily and weekly working
hours, overtime, meal intervals, payment for work on Sundays and public holidays, annual
and sick leave and notice to terminate employment. The BCEA of 1983 did not provide for
minimum wages. The Wage Act did so by allowing the Minister of Labour to promulgate
wage determinations in terms of which minimum wages and other conditions of employ-
ment were established for particular sectors (after investigations and recommendations by
the Wage Board).
The newly elected, democratic government embarked on a process of reforming our
labour laws. The Labour Relations Act 28 of 1956 (LRA) was replaced by the LRA 66 of
1995. Other new legislation was enacted (e.g. the Employment Equity Act and the Skills
Development Act) and existing statutes were amended. Of particular significance was the
enactment of the new BCEA 75 of 1997. The 1983 BCEA and the Wage Act were repealed
and the new BCEA incorporated and refined the provisions of the two repealed Acts and
expanded the rights of employees. The new BCEA was made applicable to more employers
and employees and include a number of new minimum standards, such as averaging of
working hours, night work, maternity and family responsibility leave and more.
The making of wage determinations under the old Wage Act was replaced by the making
of sectoral determinations under the new BCEA. The BCEA of 1997, like the 1983 Act, does
not prescribe minimum wages. Wages are prescribed by way of sectoral determinations,
promulgated in terms of Chapter 8 of the BCEA. A sectoral determination also includes
49
employment conditions applicable in the sector to which it applies. Once a sectoral deter-
mination has been promulgated, it takes precedence over the provisions of the BCEA.
The BCEA is of considerable importance for the day-to-day administration of personnel
matters as it sets the minimum standards and is always applicable in the absence of collect-
ive agreements and sectoral determinations (or, if a contract of employment is more favour-
able than the BCEA, the contract applies).
Sectoral determinations, in terms of which minimum wages are laid down, apply to spe-
cific sectors. In the absence of a sectoral determination a collective agreement can be con-
cluded to prescribe minimum wages. Many such agreements have been concluded in, inter
alia, the metal industry, civil engineering sector, road freight sector, motor industry and
many more. Although many employees are covered by either a sectoral determination or a
collective agreement on wages and are consequently protected against exploitative and
unfair pay, many employees work in sectors and industries where no prescribed minimums
apply. Their wages are determined by the employer or by negotiations between the em-
ployer and individual employee. Those wages are generally low and some argue that even
the prescribed wages cannot be considered a living wage. It is for this reason that govern-
ment, prompted by organised labour, decided to set a minimum wage across the board.
After extensive deliberations the National Minimum Wage Act 9 of 2018 (NMWA) was
enacted in 2018 and took effect on 1 January 2019.
Alongside the enactment of the NMWA, amendments to the BCEA and the LRA were
introduced by the Basic Conditions of Employment Amendment Act 7 of 2018 and Labour
Relations Amendment Act 8 of 2018, both of which came into operation on 1 January 2019.
The Labour Laws Amendment Act 10 of 2018 was also signed into law and the date of its
1
commencement is awaited.
It is no longer possible to read the BCEA in isolation. In order to fully grasp the minimum
standards that apply in every work situation, the following Acts must be read together:
• the Basic Conditions of Employment Act 75 of 1997, as amended;
• the Labour Laws Amendment Act 10 of 2018 (which inserts additional types of leave into
the BCEA); and
• the National Minimum Wage Act 9 of 2018.
3.2 Objectives of legislation setting minimum standards

The Basic Conditions of Employment Act 75 of 1997 (BCEA) was adopted by Parliament on
26 November 1997 and came into operation on 1 December 1998. Significant amendments
to the Act took effect on 1 August 2002 when the Basic Conditions of Employment
Amendment Act 11 of 2002 was enacted. Further important amendments were introduced
by the Basic Conditions of Employment Amendment Act 20 of 2013, which took effect on
1 September 2014 and the most recent amendments were introduced by the Basic Condi-
tions of Employment Amendment Act 7 of 2018 and the Labour Laws Amendment Act 10
of 2018. The BCEA amendments took effect on 1 January 2019; the Labour Laws Amend-
ment Act has, save for sections 9 and 10, not yet commenced.
The purpose of the BCEA is in the main to advance economic development and social
justice by ensuring that the working conditions of unorganised and vulnerable employees
meet minimum standards that are socially acceptable. Effect is given to the right to fair
labour practices, found in section 23(1) of the Constitution, by establishing and enforcing
basic employment conditions.
________________________
1 As at the date of going to print (June 2019) the Labour Laws Amendment Act 10 of 2018 has not yet
come into operation, save for ss 9 & 10 thereof that took effect on 1 March 2019.
Basic conditions of employment & minimum wages 51
Whilst the BCEA provides, amongst many other conditions of employment, for different
types of leave, the Labour Laws Amendment Act expands leave entitlements to include
parental leave, adoption leave and commissioning parental leave. These types of leave will
take effect only when the Labour Laws Amendment Act comes into operation.
Whereas the BCEA creates a set of minimum standards, variation of the minimums are
permitted by way of collective bargaining, sectoral determinations, contracts of employment
and ministerial determinations.
The National Minimum Wage Act 9 of 2018 (NMWA) was signed on 23 November 2018
and came into effect on 1 January 2019. The NMWA seeks to establish a minimum wage
across the board, which will be revised annually. The purpose is to improve the wages of the
lowest paid workers and to protect workers from unreasonably low wages. No employee may
be paid less than the minimum wage, unless the NMWA allows for exceptions or unless an
employer has received exemption under the NMWA.
3.3 Definitions
Some of the more important definitions, as provided for in section 1 of the BCEA, are the
following:
basic condition of employment means a provision of this Act [BCEA] or sectoral determination that
stipulates a minimum term or condition of employment and includes the national minimum
wage;
domestic worker means an employee who performs domestic work in the home of his or her employer
and includes a gardener, a person employed by a household as a driver of a motor vehicle and a
person who takes care of the children, the aged, the sick, the frail or the disabled, but does not
include a farm worker;
employee means:
(a) any person, excluding an independent contractor, who works for another person or for the
State and who receives or is entitled to receive any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an
employer.
This definition mirrors the definition of “employee” in the Labour Relations Act (see the
discussion in Chapter 11). In summary, to determine the existence of the ordinary employ-
ment relationship (i.e. the common law contract of employment or locatio conduction
operarum), the dominant impression test is used (see Chapter 2 par 2.2). Because of statuto-
ry provisions enacted since 2002, it is no longer possible to apply the dominant impression
test in isolation. Consideration also has to be given to the presumption created in section
83A of the BCEA (and in s 200A of the LRA) as to who is an employee, as well as the Code
of Good Practice: Who is an Employee (see the Appendix to Chapter 2). And, if the protec-
tions against discrimination in section 79(1) of the BCEA are in question, “employee” also
includes a former employee and an applicant for employment.
Section 83A of the BCEA creates a rebuttable presumption of who an employee is. This
means that if any one of the following factors exists, the person who renders a service is
presumed to be an employee and the onus is on the employer to prove the contrary. Sec-
tion 83A(1) provides as follows:
83A. Presumption as to who is employee
(1) A person who works for, or renders services to, any other person is presumed, until the con-
trary is proved, to be an employee, regardless of the form of the contract, if any one or more
of the following factors is present:
(a) the manner in which the person works is subject to the control or direction of another
person;
(b) the person’s hours of work are subject to the control or direction of another person;
(c) in the case of a person who works for an organisation, the person is a part of that organ-
isation;
(d) the person has worked for that other person for an average of at least 40 hours per
month over the last three months;
(e) the person is economically dependent on the other person for whom that person works
or renders services;
(f) the person is provided with tools of trade or work equipment by the other person; or
(g) the person only works for or renders services to one person.
In terms of section 83A(2) the presumption does not apply to persons who earn more than
the threshold amount determined by the Minister in terms of section 6(3) of the BCEA
2
(currently R205 433-30 per annum ), commonly known as the “BCEA threshold”. A person
who earns less than the threshold amount or his alleged employer may approach the CCMA
3
for an advisory award as to whether he is in fact an employee or not (s 83A(3)).
Section 82 of the BCEA specifies that a person (an employee, not an independent con-
tractor) whose services have been procured for or provided to a client by a temporary
employment service (TES or labour broker) is the employee of that TES and the TES is that
person’s employer.
Lastly, any ministerial notice in terms of which a category of persons are deemed to be
employees for the purposes of the BCEA also need to be taken into account (s 83).
farm worker means an employee who is employed mainly in or in connection with farming activ-
ities and includes an employee who wholly or mainly performs domestic work in a home on a
farm;
remuneration means any payment in money and/or in kind, made or owing to any person in re-
4
turn for that person working for any other person, including the State;
senior managerial employee means an employee who has the authority to hire, discipline and dismiss
employees and to represent the employer internally and externally;
temporary employment service means any person who, for reward, procures for or provides to a client
other persons who render services or performs work for that client and who are remunerated by
the temporary employment service;
wage means the amount of money paid or payable to an employee in respect of ordinary hours of
work or, if they are shorter, the hours an employee ordinarily works in a day or week.
The Labour Laws Amendment Act 10 of 2018 inserted new definitions into the BCEA. The
following definitions are of importance for the purposes of parental types of leave:
adoption order means an adoption order as envisaged in the Children’s Act 38 of 2005;
adoptive parent has the meaning assigned to it in section 1 of the Children’s Act;
prospective adoptive parent means a person who complies with the requirements set out in section
231(2) of the Children’s Act.
Some of the definitions found in the NMWA, in section 1 and Schedule 1, are the same or
similar to those in the BCEA, but the NMWA also contains other definitions of which the
most important are:
employer means any person who is obliged to pay a worker for the work that the worker performs
for that person.
It must be noted that the BCEA does not define “employer”.
National minimum wage means the national minimum wage determined in Schedule 1 and
adjusted annually in terms of section 6 [of the NMWA].
Schedule 1 to the NMWA lays down the national minimum wage.
________________________
2 This amount is reviewed and amended by the Minister of Labour from time to time and refers to gross
pay before deductions (such as income tax, pension, medical and similar contributions), but excludes
overtime pay, subsistence and transport allowances, achievement awards and payments (contributions)
made by the employer in respect of the employee – GN 531 in GG37795 of 1 July 2014. See also fn 4.
3 All references to sections appearing in brackets in this Chapter refer to sections in the BCEA, unless
otherwise specified.
4 The Minister may, in terms of s 35(5) of the BCEA, determine whether any category of payment,
whether in money or in kind, forms part of remuneration for the purposes of calculations made in
terms of the BCEA.
Notably, the NMWA does not refer to an “employee” as the BCEA and other Acts do. It
rather refers to a “worker”.
Worker means any person who works for another and who receives or is entitled to receive
any payment for that work, whether in money or in kind.
3.4 Application
The BCEA applies to both the public and private sectors and covers all employees and
employers, except members of the State Security Agency and unpaid volunteers working for
an organisation serving a charitable purpose. These two categories of employees are totally
excluded from the BCEA (s 3(1)).
The NMWA applies to all workers and employers, except members of the SA National
Defence Force, National Intelligence Agency and the SA Secret Service. Like the BCEA, the
NMWA also does not apply to volunteers, i.e. persons performing work for another who do
not receive or are not entitled to receive any remuneration (s 3 of the NMWA).
Certain categories of employees are not totally excluded from the BCEA, but only from
some of its provisions. They are the following:
Category Exclusion
Persons undergoing vocational training The BCEA applies to them except to the
extent that their employment is regulated by
the provisions of any other law (s 3(2))
Persons employed on vessels at sea in respect Excluded from the BCEA, except for s 41
of which the Merchant Shipping Act 57 of (severance pay); s 62A (definition of “em-
1951 applies ployee” for the purposes of monitoring and
enforcement); and Chapters 3–6 (leave;
particulars of employment; termination of
employment; prohibition of child and forced
labour); and except to the extent provided
for in a sectoral determination and the
NMWA (s 3(3))
Senior managerial employees and employees Excluded from ss 9–18 (ordinary working
engaged as sales staff who travel to the prem- hours; overtime; compressed working week;
ises of customers and who regulate their own averaging of working hours; maximum hours
hours of work prescribed by Minister; meal intervals; rest
periods; Sunday work; night work; public
holidays) (s 6(1))
Employees who work less than 24 hours per Excluded from Chapter 2 (ss 9–18); Chapter
month for an employer 3 (all types of leave); Chapter 4 (particulars
of employment and remuneration); Chapter
5 (termination of employment and pay-
ments)
Employers who employ fewer than five em- Excluded from s 29(1)(n), (o) and (p) (cer-
ployees tain particulars to be provided in writing);
and ss 30, 31 and 33 (informing employees of
their rights; keeping of records; information
about remuneration)
Employees engaged in unexpected work Excluded from ss 9, 10(1), 14(1), 15(1), 17(2)
which must be done without delay and which and 18(1) (ordinary hours of work; overtime;
cannot be performed during ordinary work- meal intervals; daily and weekly rest periods;
ing hours night work; work on public holidays)
continued
Category Exclusion
Employees whose employment is subject to a Employees to whom a council or other col-
bargaining council collective agreement or lective agreement is applicable are subject to
other collective agreement or to a sectoral that agreement and the agreement and not
determination or individual agreement (con- the BCEA applies. Similarly, where a sectoral
tract) determination is applicable the BCEA does
not apply. A contract of employment is ap-
plicable only if it is more favourable than the
BCEA
Employees who earn more than the BCEA Excluded from ss 9, 10, 11, 12, 14, 15, 16,
6
threshold, determined by the Minister in 17(2) and 18(3) (ordinary working hours;
terms of section 6(3) (currently R205 433-30 overtime; compressed working week; aver-
5
per annum ) aging of hours; meal intervals; daily and
weekly rest periods; Sunday work; allowances
and transport for night work; pay for work
on public holidays)
3.5 Conditions of employment

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

Chapter 2 of the BCEA regulates working time by providing for ordinary working hours,
overtime, a compressed working week, averaging of hours, meal intervals and rest periods,
night work, Sunday work and work on public holidays.
In terms of section 7 of the BCEA employers have to regulate working time with due
regard to the health and safety of employees, the Code of Good Practice on the Regulation
of Working Time (see Appendix 2) and the family responsibilities of employees. Section 7
is applicable to all employees, also to those excluded from some of the provisions of the
BCEA.
The Minister may, on grounds of health and safety, prescribe maximum ordinary and
overtime hours for any category of employees. Such a determination is issued on the advice
of the Chief Inspector (appointed under the Occupational Health and Safety Act or the
________________________
5 See fn 2. In order to determine what an employee earns, “earnings” is defined in GN 531 in GG 37795
of 1 July 2014 as “the regular annual remuneration before deductions, i.e. income tax, pension, medical
and similar payments, but excluding similar payments (contributions) made by the employer in respect
of the employee: Provided that subsistence and transport allowances received, achievement awards and
payments for overtime worked shall not be regarded as remuneration.”
6 GN 531 in GG37795 of 1 July 2014.
Mine Health and Safety Act) and after consultation with the National Minimum Wage
Commission (s 13.)
For the purposes of regulating working hours “day” is defined in section 8 as a period of
24 hours measured from the time when an employee normally commences work.
3.6.1 Ordinary working hours (s 9)

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

A maximum of 45 hours per week • If working for 5 days or fewer per week: maximum
of 9 hours per day
• If working for more than 5 days per week: maxi-
mum of 8 hours per day
• If an employee’s duties include serving the public,
the maximum may by agreement be extended by
15 minutes per day up to a maximum of 60
minutes per week to enable the employee to con-
tinue performing those duties after the completion
of ordinary hours of work
One of the goals of the BCEA is to ultimately reach a 40-hour working week with a max-
imum of eight ordinary hours per day. Schedule 1 to the BCEA establishes procedures for
the progressive reduction of the maximum ordinary working hours by way of collective
bargaining, sectoral determinations and recommendations made by the National Minimum
Wage Commission or Department of Labour.
3.6.2 Overtime (s 10)

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

No limit on overtime Maximum of 10 hours 1½ hourly rate
hours per day (but overtime per week or
ordinary and overtime (s 10(1))
hours together may not by agreement, the normal hourly rate
or plus paid time off at a rate of 30
exceed 12 hours per
day) in terms of a collective minutes for every hour of overtime
agreement, 15 hours worked
maximum per week. or
The 15-hour maximum
applies for only two by agreement, no pay in respect of the
months in any 12- overtime hours; only paid time off at
month period the rate of 90 minutes for every hour of
overtime worked
3.6.3 Compressed working week (s 11)

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

Ordinary hours of work and overtime may, in terms of a collective agreement, be averaged
over a maximum period of four months, subject to an average of ordinary hours not ex-
ceeding 45 hours per week and an average of overtime not exceeding five hours per week.
The first two collective agreements providing for averaging working hours each lapse
after 12 months, i.e. these arrangements must be reviewed on an annual basis for the first
two years, after which the parties may agree to extend such an agreement indefinitely.
3.6.5 Meal intervals and rest periods (ss 14–15)

In terms of section 14 of the BCEA an employee must be given a meal interval of at least
one hour after five hours of continuous work (i.e. work which continues unless interrupted
by an interval of 60 minutes). The parties may by agreement reduce the meal interval to a
30-minute interval or, if an employee works fewer than six hours per day, dispense with the
meal interval altogether.
The meal interval is unpaid and an employee may not be required to work during the
interval, unless some duties cannot be left unattended and cannot be performed by another
employee. An employee who performs such work or who is required to be available for
work during the interval must be remunerated. An employee must also be remunerated for
any portion of a meal interval that exceeds 75 minutes, unless the employee lives on the
premises at which the workplace is situated.
Section 15 introduces daily and weekly rest periods: a daily rest period of at least 12 con-
secutive hours between ending and recommencing work and a weekly rest period of at least
36 consecutive hours, which must include Sunday, unless otherwise agreed.
Rest periods may be varied by written agreement between the employer and employee.
The daily rest period may be reduced to ten hours for an employee who lives on the work
premises and whose meal interval lasts three or more hours. In respect of weekly rest
periods an agreement may provide for a rest period of at least 60 consecutive hours every
two weeks or the weekly rest period may be reduced by up to eight hours in any week,
provided the rest period in the following week is extended equivalently.
3.6.6 Work on Sundays and public holidays (ss 16 & 18)

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

• An employee who ordinarily works on Sun- • An employee who works on a public holi-
days must be paid 1½ times his hourly rate day which would otherwise have been an
for every hour worked ordinary working day must be paid:
• An employee who does not ordinarily – at least double his daily rate;
work on Sundays must be paid double his OR
hourly rate for every hour worked
– his normal daily rate plus the amount
• If payment for every hour worked amounts for actual time worked
to less than the ordinary daily pay, the em-
ployee must be paid the daily rate whichever is the greater
• Instead of the remuneration referred to, • An employee who does not work on a
the parties may agree on the ordinary rate public holiday (which would otherwise be a
plus time off, i.e. the employee must working day) the employee must be paid
receive his ordinary hourly rate and paid one day’s pay
time off equivalent to the difference in • An employee who works on a public holi-
value between the ordinary wage received day which does not fall on an ordinary
and the wage the employee is entitled to working day must be paid his daily wage
in terms of the above Sunday rates plus pay for actual work performed on that
day
Work performed on a Sunday by an employee who does not normally work on Sundays is
considered overtime and the hours so worked form part of the overtime hours.
If a shift worked by an employee falls on a Sunday and another day, the whole shift is
deemed to have been worked on the Sunday, unless the greater portion of the shift was
worked on the other day, in which case the whole shift is deemed to have been worked on
the other day. The same provision is applicable to work on public holidays.
In terms of section 2(2) of the Public Holidays Act 36 of 1994 a public holiday is exchange-
able for any other day by agreement between employer and employee.
3.6.7 Night work (s 17)

Section 17 of the BCEA regulates night work. Two types of night work are catered for, each
attracting different obligations for employers:
• “night work” is defined as work done between 18:00 and 06:00 the following morning.
The employer must pay the employee an allowance, which may be a shift allowance or
which may take the form of reduced working hours. Transportation must be available
between the employee’s place of residence and the workplace at the commencement
and conclusion of the employee’s shift;
• “night work on a regular basis” is defined as work of more than one hour between 23:00
and 06:00 the following morning on at least five occasions per month or 50 occasions per
year. An employer who requires an employee to perform night work on a regular basis
has to inform the employee of any health and safety hazards associated with the work.
At the request of the employee, the employer must enable him to undergo a medical
examination concerning those hazards and, where practicable, transfer the employee to
suitable day work if he suffers from a health condition associated with the performance
of night work.
3.7 Leave
Chapter 3 of the BCEA regulates leave. Different types of leave are catered for: annual
leave, sick leave, maternity leave, family responsibility leave and, as a result of the Labour
Law Amendment Act, adoption leave, parental leave and commissioning parental leave.
The leave provisions do not apply to employees who work less than 24 hours per month.
The provisions of the BCEA similarly do not apply to any portion of leave that is granted in
excess of the statutory minimum, unless an agreement provides otherwise.
3.7.1 Annual leave (ss 20 & 21)

Annual leave is governed by sections 20 and 21 of the Act. Annual leave is leave with full pay
and is calculated over a 12-month cycle.
Annual leave
• Leave with full pay
• Annual leave is calculated over a 12-month leave cycle (cycle starts on the commencement
date of employment and on every anniversary date thereafter)
• A minimum of 21 consecutive days’ leave per cycle must be granted to an employee
or
• by agreement, one day for every 17 days of completed work or one hour for every 17 hours
worked
• The leave entitlement must be extended by one day for every public holiday that falls
within the leave period
Leave must be taken as consecutive days, but an employer may grant occasional days of
leave during the cycle. The minimum number of days leave, as prescribed, must be taken
and may not be “traded” for money. Where more than the prescribed minimum days leave
is granted to an employee, for example in a contract or collective agreement, the days in
excess of the prescribed minimum may be accumulated, subject to conditions laid down by
the employer.
Annual leave must be granted to the employee within the first six months of completion
of the leave cycle or at a time the parties agree upon, but leave can only be taken at the
approval of the employer and when operational requirements allow for the absence of the
employee.
Leave may not run concurrently with a period of notice to terminate services or any period
of leave the employee is entitled to (sick leave, maternity leave, etc), except a period of
unpaid leave.
Remuneration in respect of the leave period must be paid to the employee on the last
day of work before the leave commences or, by agreement, on the usual pay day. If an
employee has leave days to his credit upon termination of employment he must be paid for
those days (s 20(11), read with s 40). In terms of section 40(b) annual leave not yet taken
must be paid out and, in terms of section 40(c), leave is calculated on the basis of one day
for every 17 days worked where employment is terminated before an annual leave cycle has
been completed.
3.7.2 Sick leave (ss 22–24)

Sick leave is calculated over a three-year (36 months) cycle and is leave with full pay.
Sick leave
• Leave with full pay
• Sick leave is calculated over a 36-month leave cycle
• An employee is entitled, over the three-year period, to the total of the number of days he
would ordinarily work in six weeks, e.g. if an employee works five days per week, he would
work 30 days in six weeks, which gives him 30 days’ sick leave in the sick leave cycle
• The employee is entitled to the full complement of sick leave at any time during the leave
cycle, provided the first six months of employment have been completed
• During the first six months of employment the employee is limited to one day’s paid sick
leave for every 26 days worked
Sick leave is paid leave, in other words the employee is entitled to his normal daily rate of
pay for every day he takes sick leave, provided he does not exceed his leave entitlement.
The employer and employee may, however, agree to reduce sick leave pay to not less than
75% of the employee’s normal pay, but then the number of days leave must be increased
proportionately. Payment for sick leave must take place on the usual pay day.
A medical certificate is required after two days of absence. If an employee is absent on
more than two occasions in an eight-week period a medical certificate is required for any
number of days’ absence, even for one day. If no proof of illness is submitted the employer
is not obliged to pay the employee. An employer is required to assist an employee who lives
on the employer’s premises to obtain a medical certificate.
A medical certificate is valid and acceptable only if issued by a medical practitioner or a
person who has been certified and registered with a professional council.
The above provisions relating to sick leave are not applicable to an employee whose inabil-
ity to work was caused by an accident or occupational disease as defined in the Compensa-
tion for Occupational Injuries and Diseases Act of 1993 or the Occupational Diseases in
Mines and Works Act of 1973, except in respect of any period during which no compensa-
tion was payable to the employee in terms of those Acts.
3.7.3 Maternity leave (s 25)

An employee is entitled to four months’ maternity leave. Maternity leave is unpaid leave,
but the employer and employee can agree on payment or payment may be negotiated by
way of a collective agreement. If an employee receives no payment during her maternity
leave, or less than her normal income, she can claim maternity benefits under the Unem-
ployment Insurance Act.
The employee is required to notify her employer four weeks in advance and in writing of
the intended date of commencement of maternity leave and the return date to work.
Maternity leave
• Maternity leave is four consecutive months.
• Maternity leave commences at any time from four weeks before the expected date of con-
finement OR on an agreed date OR on a date necessitated by the employee’s health or
that of her unborn child (as certified by a medical practitioner or midwife).
• An employee may not work for six weeks after the birth of her child, unless a medical
practitioner or a midwife certifies that she is fit to do so.
• An employee who has a miscarriage during the third trimester or bears a stillborn child is
entitled to maternity leave for six weeks after the miscarriage or stillbirth.
Section 26 of the BCEA provides protection to a pregnant employee or one who is nursing
a baby. An employer may not require or permit a pregnant employee or one who is nursing
a baby to perform work hazardous to her health or that of her child. Where the employee
performs night work, the employer must offer her suitable alternative employment during
her pregnancy and for six months after the birth of her child on conditions not less favour-
able than her normal conditions of employment.
The Minister is required, in terms of section 87, to issue a Code of Good Practice for the
protection of this category of employee. The Minister has indeed done so and the “Code of
Good Practice on the Protection of Employees during Pregnancy and after the Birth of a
Child” was published in GNR.1441 of 1998 (see Appendix 3).
It is to be noted that an employer’s refusal to allow the employee to resume work after
her maternity leave constitutes a dismissal (s 186(1)(c) of the LRA) and the dismissal of an
employee on account of her pregnancy, intended pregnancy or any reason related to her
pregnancy constitutes an automatically unfair dismissal (s 187(1)(e) of the LRA).
3.7.4 Parental leave (s 25A)

Section 25A is inserted into the BCEA by the Labour Laws Amendment Act of 2018 (once
the latter is in operation). In terms of the new section 25A any parent is entitled to ten days’
parental leave when a child is born or adopted.
• An employee who is a parent is entitled to parental leave upon the birth or adoption of a
child.
• Parental leave is ten (10) consecutive days per occasion.
• Parental leave commences on:
the day the child is born
or
the date an adoption order is granted or the date a child is placed in the care of the pro-
spective adoptive parent, whichever date is the earlier.
• The employee must notify the employer in writing of the commencement date of the leave
and the return date after leave, such notification to be given one month before the
expected birth or adoption date.
• Parental leave is unpaid, but the employee may claim parental benefits under the Unem-
ployment Insurance Act (or negotiate payment with the employer).
An adoptive parent is a person who has adopted a child in terms of any law (s 1 of the
Children’s Act). A prospective adoptive parent is a person who qualifies to adopt a child, is
older than 18 and fit and proper (i.e. suitable) to be entrusted with parental responsibilities
and who has been assessed and found fit by a social worker (s 231(2) of the Children’s Act).
An adoption order is an order given by a competent court that places a child in the per-
manent care of the adoptive parent (ss 228 & 242 of the Children’s Act).
3.7.5 Adoption leave (s 25B)

Section 25B is inserted into the BCEA by the Labour Laws Amendment Act of 2018 (once
the latter is in operation). In terms of the new section 25B any adoptive parent is entitled to
adoption leave of ten weeks.
• An employee who is an adoptive parent is entitled to adoption leave, provided the child
being adopted is younger than two years old.
• Adoption leave is ten (10) consecutive weeks.
• An adoptive parent is entitled to adoption leave or parental leave. If an adoption order is
made in respect of two parents or if a court places a child in the care of two prospective
adoptive parents, one is entitled to adoption leave and the other to parental leave (at their
election).
• Adoption leave commences on the date an adoption order is granted or the date a child is
placed in the care of the prospective adoptive parent, whichever date is the earlier.
and the return date after leave, such notification to be given one month before the date of
the adoption order or the date the child is placed in the care of the parent.
• Adoption leave is unpaid, but the employee may claim adoption benefits under the Unem-
ployment Insurance Act (or negotiate payment with the employer).
3.7.6 Commissioning parental leave (s 25C)

Section 25C is inserted into the BCEA by the Labour Laws Amendment Act of 2018 (once
the latter is in operation). In terms of the new section 25C a commissioning parent in a
surrogate agreement is entitled to commissioning parental leave of ten weeks.
A “commissioning parent” is a person who enters into a surrogate motherhood agree-

ment with a surrogate mother, i.e. an adult woman who enters into a surrogate mother-
hood agreement with the commissioning parent. A surrogate motherhood agreement is an
agreement between a surrogate mother and a commissioning parent in which it is agreed
that the surrogate mother will be artificially fertilised for the purpose of bearing a child for
the commissioning parent and in which the surrogate mother undertakes to hand over
such a child to the commissioning parent upon its birth, or within a reasonable time there-
after, with the intention that the child concerned becomes the legitimate child of the
commissioning parent (s 1 of the Children’s Act).
• An employee who is a commissioning parent in a surrogate agreement is entitled to com-

missioning parental leave.
• Commissioning parental leave is ten (10) consecutive weeks.
• A commissioning parent is entitled to commissioning parental leave or parental leave. If
the surrogate agreement has two commissioning parents, one is entitled to commissioning
parental leave and the other to parental leave (at their election).
• Commissioning parental leave commences on the date the child is born.
and the return date after leave, such notification to be given one month before the
expected birth date of the child.
• Commissioning parental leave is unpaid, but the employee may claim commissioning
parental benefits under the Unemployment Insurance Act (or negotiate payment with the
employer).
3.7.7 Family responsibility leave (s 27)

An employee who works for at least four days a week for an employer is entitled to family
responsibility leave. This entitlement accrues to the employee once the first four months of
employment have been completed.
Family responsibility leave

• Family responsibility leave is three days during an annual leave cycle (which can be varied
by a collective agreement).
• An employee is entitled to family responsibility leave when:
7
– his child is born or is ill;
– his spouse, life partner, parent, adoptive parent, grandparent, child, adopted child,
grandchild or sibling dies.
• Family responsibility leave is paid leave; the employee is entitled to his ordinary daily pay
(to be paid on the usual pay day).
• The employer may require proof of the event for which leave is/was required.
• Unused days do not accrue.
________________________
7 At present the father of a child is entitled to family responsibility leave when his child is born. This pos-
ition will change once the additional types of leave take effect. The entitlement to family responsibility
leave upon the birth of a child will fall away and the father will become entitled to parental leave.
3.8 Particulars of employment and remuneration (Ch 4 ss 28–35)

Chapter 4 of the BCEA does not apply to an employee who works fewer than 24 hours per
month. Employers who employ fewer than five employees are exempt from some of the
provisions of Chapter 4 (s 28).
In terms of section 29 an employer is required to provide certain information in writing
to an employee upon his appointment. This information relates to the particulars of the
employer and employee, the employee’s occupation and place of work, the date of com-
mencement of duties, ordinary hours and days of work, wages, overtime pay, any payment in
kind and the value thereof, the intervals of payment of remuneration, deductions from the
employee’s remuneration, leave, notice period or, if employment is for a fixed period, the
date when employment is to terminate, council or sectoral determinations applicable to the
employer’s business (not required if the employer employs fewer than five employees) and
a list of any other documents that form part of the contract of employment (not required if
the employer employs fewer than five employees) (s 29(1)).
The information must be explained to the employee in a language he understands
(s 29(3)).
Every employer is required to keep a record of each employee’s name and occupation,
time worked and remuneration paid and, if an employee is younger than 18, the date of
birth. This information must be kept for a period of three years from the date of the last
entry in the record (s 31). An employer who employs fewer than five employees is exempt
from keeping these records.
All employers are required to display in all the official languages spoken in the workplace
the rights of employees under the BCEA (s 30). This requirement does not apply to an
employer who employs fewer than five employees.
Remuneration is paid in South African currency on a daily, weekly, fortnightly or monthly
basis. Payment can be made in cash, by cheque or by direct deposit into the employee’s
banking account not later than seven days after the completion of the period in respect of
which the remuneration is payable or upon the termination of the contract of employment
(s 32). With each payment the employer must give to the employee information in writing
to show the gross pay, including pay for overtime, Sundays and public holidays, the net pay
after deductions, the details of the deductions made and the hours or period for which the
payment is made (s 33).
Wages are calculated by reference to the number of hours an employee ordinarily works.
An employee is deemed to work 45 hours in a week (unless he ordinarily works fewer hours
in a week) and nine hours per day or, if the employee works more than five days per week,
seven and a half hours per day. If the employee works a compressed week, the number of
hours per day is taken into account (s 35).
An employee’s monthly remuneration is four-and-one-third times his weekly remuner-
ation or wage. Conversely, the weekly wage is four-and-a-third of the monthly remuneration
(s 35(3)).
If an employee’s remuneration or wage is calculated, either wholly or in part, on a basis
other than by time (hours) or if his remuneration or wage fluctuates significantly from
period to period, any payment to that employee must be calculated by reference to his
remuneration or wage during the preceding 13 weeks (s 35(4)).
The Minister may, by notice in the Gazette and after consultation with the National Min-
imum Wage Commission and NEDLAC, determine whether a particular category of pay-
ment, in money or in kind, forms part of an employee’s remuneration (s 35(5)). The
8
Minister issued a regulation in this regard in 2003.
________________________
8 GN 691 of 23 May 2003.

For the purposes of calculating annual leave, pay in lieu of notice and severance pay, the
following are included:
• housing allowance/subsidy or housing received as a benefit in kind;
• car allowance of provision of a car, except to the extent that the car is provided to enable
the employee to work;
• the employer’s contributions towards medical aid, pension or provident fund;
• funeral or death benefit schemes; and
• any cash or in kind payment other than a payment to enable the employee to work (e.g.
an equipment, tool or similar allowance or the provision of transport or the payment of a
transport allowance to enable the employee to travel to and from work).
The following must be excluded from the calculation:
• any relocation allowances;
• gratuities and gifts from the employer;
• share incentive schemes;
• discretionary payments not related to an employee’s hours of work or performance;
• an entertainment allowance; and
• an education or schooling allowance.
Section 34 prohibits deductions from an employee’s wage or salary, unless the employee
agrees thereto in writing or unless a deduction is required or permitted by law, a collective
agreement, a court order or an arbitration award.
An employee may agree to a deduction in order to reimburse an employer for loss or
damage only if:
• the loss or damage occurred in the course of employment and was due to the fault of the
employee;
• the employer has followed a fair procedure and has given the employee a reasonable
opportunity to show why the deduction should not be made;
• the total amount of the debt does not exceed the actual amount of the loss or damage;
• the total deductions from the employee’s remuneration do not exceed one-quarter of
the employee’s remuneration in money (s 34(2); a similar provision is found in s 5(4) of
the NMWA).
If the deduction is in respect of any goods purchased by the employee, the nature and
quantity of the goods are to be specified.
An employer may not require or permit an employee to repay any remuneration received,
except for overpayments made as a result of an error in calculating his remuneration. The
employer may also not require or permit an employee to acknowledge receipt of an
amount greater than the remuneration actually received (s 34(5)).
Section 33A prohibits certain payments by employees. An employer may not require or
accept any payment by or on behalf of an employee or potential employee in respect of the
employment of, or the allocation of work to, any employee and may further not require an
employee or potential employee to purchase goods, products or services from the employer
or a business or person nominated by the employer, unless the contract of employment or a
collective agreement requires participation in a scheme involving the purchase of specific
goods or services at a fair and reasonable price and the employee receives a financial
benefit from participating in the scheme.
A benefit fund is a pension, provident, retirement, medical aid or similar fund. Where an
employer deducts an amount from the employee’s remuneration for payment to a benefit
fund, such an amount must be paid to the fund within seven days from the date the deduc-
tion was made, unless the rules of the fund prescribe a shorter period. Any contribution by
the employer to the fund for the benefit of the employee must also be paid within the seven
days or shorter period referred to.
3.9 Termination of employment (Ch 5 ss 36–42)

Chapter 5 of the BCEA does not apply to an employee who works fewer than 24 hours per
month for an employer.
The minimum periods of notice to terminate services are prescribed in section 37 and
are as follows:
Termination of employment
• One week’s notice if the employee has been employed for six months or less
• Two weeks’ notice if the employee has been employed for more than six months, but less
than one year
• Four weeks’ notice if the employee has been employed for one year or more
• Notice to or by farm and domestic workers may not be shorter than four weeks once they
have completed six months of employment
A collective agreement may permit a notice period shorter than the prescribed four weeks’
notice period in respect of employees who have been employed for a year or more (other
than domestic and farm workers, who must receive at least four weeks’ notice once they
have completed six months of employment), in which case the notice period may not be
reduced to less than two weeks.
Notice must be given in writing, except when it is given by an illiterate employee. If an
employee is unable to understand the notice, it must be explained in an official language
he reasonably understands.
The provisions of Chapter 5 do not affect the right of a dismissed employee to dispute
the lawfulness or fairness of the dismissal in terms of the LRA or any other law. Neither is
the right of an employer or an employee to terminate a contract of employment without
notice for any cause recognised by law affected.
Employers have the right to offer payment in lieu of notice (s 38), although this right is
somewhat curtailed in respect of an employee who resides in accommodation on the prem-
ises of the employer or on premises supplied by him. Where the services of an employee
who receives accommodation from his employer are terminated without the required
notice period or where payment in lieu of notice is given, the employer is required to pro-
vide the employee with accommodation for a period of one month or until the contract of
employment could lawfully have been terminated (whichever is the longer period). If an
employee elects to remain in accommodation after the employer has terminated his or her
contract of employment by payment in lieu of notice, the remuneration that the employer
is required to pay instead of notice is reduced by that portion of the remuneration that rep-
resents the agreed value of the accommodation for the period that the employee remains
in the accommodation (s 39).
Upon termination of employment an employer must pay to the employee the following
amounts (s 40):
• overtime pay not yet paid or payment in respect of time off that the employee was given
in lieu of overtime or Sunday work and not yet taken;
• remuneration for any period of annual leave due that the employee has not taken;
• in respect of the employee’s annual leave entitlement during an incomplete annual leave
cycle, either one day’s remuneration in respect of every 17 days on which the employee
worked or was entitled to be paid or remuneration calculated on any other basis, which-
ever is the more favourable to the employee. This provision is applicable only if the
employee has been in employment longer than four months;
• notice pay if the notice period is not worked;

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

Part and parcel of an employee’s employment conditions is remuneration. Remuneration
or wages are determined in a contract of employment or by way of a sectoral determination
issued under the BCEA or in a collective agreement. No wage may be less than the min-
10
imum prescribed by the NMWA (s 4(4) & (5)), but a wage in a contract, a collective
agreement or any other legal prescript which is more favourable takes precedence (s 4(7)).
The NMWA applies to all employers and workers, the only exclusions being volunteer
workers and members of the SANDF, National Intelligence Agency and SA Secret Service
(s 3).
The national minimum wage appears in Schedule 1 to the NMWA. The minimum wage
must be adjusted, at first, within two years from the commencement of the NMWA (1 Janu-
ary 2019) and thereafter annually (s 4(1) & (2)).
________________________
9 In terms of s 198B(10) of the LRA severance pay is also payable to some fixed-term contract employees.
If an employee has been employed for the exclusive purpose of working on a specified project and the
contract endures for more than 24 months the employer must, on expiry of the contract, pay to the
employee one week’s remuneration for each completed year of the contract.
10 Sections referred to in par 3.10 refer to sections (or regulations) in the NMWA.
National minimum wage Exclusions

• R20 per hour for each ordinary hour • Farm workers: R18 for each ordinary hour
worked (item 1 of Sch 1 of the NMWA) worked
• Domestic workers: R15 for each ordinary
hour worked
• Workers on an extended public works
programme: R11 for each ordinary hour
worked (s 4(3) of the NMWA provides for
a proportional increase in the wage when
the national minimum is adjusted)
• Learners in a learnership agreement (in
terms of the Skills Development Act): wage
depends on the NQF level of the training
and the credits earned by the learner
(ranging between R301-01 and R1 755-84
per week – Sch 2 to the NMWA).11
• Employees/workers who earn less than
the BCEA threshold and who work fewer
than four hours on any day must be paid
as if they worked four hours on that day
(s 9A of the BCEA)
For the purpose of calculating the minimum wage the following payments are excluded:
• payments made to enable a worker to work, including transport, equipment, tool, food
an accommodation allowances (unless a sectoral determination specifies the contrary);
• payments in kind, including board or accommodation (unless a sectoral determination
specifies the contrary);
• gratuities such as tips, bonuses or gifts;
• any other prescribed category of payment.
This effectively means that the actual payment per hour must be at least R20 (or the other
prescribed minimums). A worker is entitled to the minimum wage for every hour of work
and a worker earning below the BCEA threshold who works fewer than four hours on any
day is entitled to at least four hours’ pay (s 5(2) of the NMWA and s 9A of the BCEA).
Deductions from a worker’s wages must meet the requirements of section 34 of the BCEA
(s 5(4)).
The National Minimum Wage Commission must review the minimum wage annually and
make recommendations to the Minister for an adjustment of the wage. In conducting the
review, the Commission must promote the alleviation of poverty and the reduction of
inequality and wage differentials. The Commission must further consider factors such as
inflation, the cost of living, productivity, ability of employers to continue carrying on busi-
ness and the likely impact of an adjustment of the minimum wage (s 7).
An employer who unilaterally amends wages or other conditions of employment in an
attempt to circumvent the payment of the minimum wage is guilty of an unfair labour
practice and the worker can pursue the conciliation and arbitration routes provided for in
the LRA (s 4(8)). In other words, the worker must refer the dispute within 90 days for
conciliation and if the dispute is not resolved, refer it to arbitration within 90 days from the
date of the outcome certificate. The principles applicable to the arbitration of any other
unfair labour practice equally apply to this type of unfair labour practice.
________________________
11 See appendix 6.
3.10.2 Exemptions
An employer or an employers’ organisation representing a member may apply, in the pre-
scribed manner, for an exemption from paying the prescribed minimum wage (s 15(1)). The
12
Minister has published regulations to govern applications for exemption.
The application must be lodged on the National Minimum Wage Exemption System in
the form required by the system (reg 2(2)). This is an on-line system managed by the
Department of Labour and is accessible on line at https://nmw.labour.gov.za or at any
office of the Department. The system captures all applications, submissions made in respect
of an application or by affected persons and exemptions granted or withdrawn (reg 6).
The application must include all the details of an employer (name, address, etc.) together
with the employer’s UIF registration number, Compensation Fund registration number,
SARS number, company registration number, nature of the business, any sectoral determin-
ation or collective agreement binding on the employer, whether a bargaining council has
jurisdiction and the number of workers, details of their work and their wages. The appli-
cation must be supported by financial statements of the current and previous two years
(save a private household is required to provide an annual income and expenditure state-
ment) (Sch 2 to the Regulations).
An employer who intends applying for exemption must consult a trade union represent-
ing the affected workers or, if there is no union, the workers themselves and provide them
with a copy of the application. A copy of the application must also be provided to the bar-
gaining council with jurisdiction (reg 2(3)(b) & 2(5)).
The Director General of Labour is the delegated authority dealing with exemption appli-
cations. The DG (or other authorised person) must consider the application and determine
whether or not the employer can afford to pay the national minimum wage. In order to
make such a determination the decision process in Schedule 1 to the Regulations must be
followed (reg 2(4)).
An exemption will be granted only if the DG is satisfied that the employer cannot afford
the minimum wage, the employer has consulted, in a meaningful manner, with the union
or affected employees and the employer has complied with statutory payments (e.g. UIF,
COIDA) (reg 2(3) & (10)). Where an exemption is granted, the wage to be paid and the
period for which the exemption is granted, which may not be more than 12 months, must
be specified. Conditions may be attached to the exemption (s 15(2) & reg 2(6)). The wage
to be paid under the exemption may not be less than 90% of the prescribed minimums
(reg 2(7)).
An employer is required to display a copy of the exemption notice at the workplace and
give copies thereof to the union, bargaining council and every worker who requests a copy
(reg 4).
An exemption may be withdrawn if it is found that the employer has given false or incor-
rect information, if the employer is not complying with the exemption notice or if the
employer’s financial position has improved to the extent that it can afford the minimum
wage (reg 5(1)). In addition, any affected person may apply for the withdrawal of an
exemption, provided the employer was consulted and the union or affected employees have
been given a copy of such application (reg 5(2) & (3)). If an exemption is withdrawn, a
notice thereof must be published on the exemption system and the employer must provide
copies thereof to the union, affected workers and the bargaining council (reg 5(4)).
________________________
12 GN 1401 of 19 December 2018 (GG 42124).

3.11 Prohibition of employment of children and forced labour

(Ch 6 ss 43–48)
The minimum age for employment is 15 years. No person may require or permit a child
who is under 15 years of age or under the minimum school-leaving age (whether 15 or
older) to perform any work or provide any services. Section 31(1) of the South African
Schools Act 84 of 1996 requires every parent to cause every learner for whom he or she is
responsible to attend school until the last school day of the year in which the learner reaches
the age of 15 or the ninth grade, whichever comes first.
This means that children who are 15 years of age or older and above the minimum school
leaving age, but under the age of 18, are protected and their employment is regulated. The
Minister may impose conditions on or prohibit the work of children 15 years and older who
are no longer subject to compulsory schooling and may issue regulations relating to the
medical examinations of children who perform work. Section 44(1A) enables the Minister to
make regulations to give effect to South Africa’s international law obligations dealing with
work by children.
It is an offence to require or permit a child to perform any work or provide any services
that are inappropriate for a person of the child’s age or that places at risk the child’s well-
being, education, physical or mental health or spiritual, moral or social development. It is also
an offence to assist any person to require or permit a child to work in contravention of the Act
or to discriminate against a person who refuses to permit a child to work in contravention of
the Act. Forced labour is also prohibited.
3.12 Variation of conditions of employment (Ch 7 ss 49–50)

The conditions of employment contained in the BCEA may be varied by collective agree-
ments concluded in or outside bargaining councils, individual agreements (contract of
employments), ministerial determinations and sectoral determinations.
3.12.1 Variation by agreement (s 49)

Bargaining council agreements take preference over other collective agreements and the
latter, in turn, take preference over individual agreements (s 49(4)).
• Bargaining council collective agreements may vary, replace or exclude any condition of
employment, provided they do not reduce the core rights of an employee, i.e. the pro-
tection afforded to employees regarding ordinary working hours and the arrangement of
working time with due regard to health, safety and family responsibilities; the protection
in section 17(3) and (4) of the BCEA relating to regular night work; an employee’s enti-
tlement to sick leave; an employee’s entitlement to maternity leave and, once the Labour
Laws Amendment Act of 2018 takes effect, also the entitlement to parental, adoption and
commissioning parental leave; the entitlement to annual leave may be reduced, but not
to less than two weeks; and the protection against child and forced labour (s 49(1)).
• Other collective agreements may replace or exclude a basic condition of employment to the
extent permitted by the BCEA or a sectoral determination (s 49(2)). Examples of condi-
tions of employment that may be varied include overtime, weekly rest periods, Sunday
work and sick leave pay.
• Individual agreements or contracts of employment may vary conditions of employment
within the limits set by the BCEA or a sectoral determination (s 49(3)), such as overtime,
weekly rest periods, Sunday work and sick leave pay.
3.12.2 Variation by ministerial determination (s 50)

The Minister may by way of a ministerial determination replace or exclude any basic condition
of employment contained in the BCEA. Such a ministerial determination may be made at
the Minister’s own initiative or on application by an employer and/or a registered employ-

er’s organisation (s 50(1)).
Where a determination is made at the Minister’s initiative, the advice of the National
Minimum Wage Commission must be sought and the determination must be published in
the Government Gazette (s 50(3)). A determination applicable to the public service must be
made in consultation with the Minister of Public Service and Administration and a deter-
mination dealing with the employment of children must be made in consultation with the
Minister of Welfare and Population Development (s 50(5) & (6)).
Where an employer or employers’ organisation applies for a determination to be made
every registered trade union representing the employees must consent to the application
or, if consent cannot be obtained, the employer or employers’ organisation must serve a
copy of the application on the union or employees (if not represented by a union) (s 50(7)).
If the Minister issues a determination on application the period of its applicability, and any
conditions the Minister wishes to attach to the determination, must be specified. The
determination is published in the Government Gazette (s 50(8)).
All determinations must be displayed at the workplace and unions and employees must
be notified thereof (s 50(10)).
A ministerial determination may not vary the protections afforded employees relating to
regular night work, maternity leave and child labour, but a determination may be made in
respect of children younger than 15 or the school leaving age in order to allow them to
participate in advertising, sport, artistic and cultural activities (s 50(2)).
A ministerial determination in respect of ordinary working hours, overtime, meal inter-
vals, rest periods and annual leave may be made, but only if the provisions in the determin-
ation are on the whole more favourable than those contained in the BCEA and if the
making of a determination has been agreed to in a collective agreement or if it is neces-
sitated by the operational circumstances of the sector or if it applies to the agricultural or
private security sectors (s 50(2A)).
The Minister has issued ministerial determinations, varying the provisions of the BCEA,
13
for the small business sector (i.e. employers with fewer then employees), the welfare
14 15
sector and in respect of expanded public works programmes.
3.12.3 Sectoral determinations (Ch 8 ss 51–58)

The Minister may make a sectoral determination, establishing basic conditions of employ-
ment and minimum wages for employees in a particular sector and area (s 51(1)).
If a sectoral determination which was in operation at the time the NMWA took effect
(1 January 2019) prescribes wages that are higher than the national minimum wage, the
wages and benefits in that determination must be increased proportionally when the
national minimum wage is adjusted (s 51(3)).
Despite any provision in a sectoral determination, an employer is required to pay a
learner in a learnership agreement at least the minimums that are prescribed in Schedule 2
to the NMWA (s 51(4)).
Before making a sectoral determination, the Minister must direct the National Minimum
Wage Commission to investigate the existing conditions of employment in the sector and
area concerned. The Commission, of its own accord or at the direction of the Minister,
________________________
13 GNR 1295 of 5 November 1999. This determination does not apply to the employment of domestic
workers, the public service, employers with more than one business and a business formed by the div-
ision of an existing business.
14 GNR 655 of 20 July 2001.
15 GNR 347 of 4 May 2012.
determines the terms of reference for the investigation which are then published in the
Government Gazette, inviting written representations by members of the public (s 52(1)–(3)).
An investigation may be conducted at the written request of an employer or employee
organisation in a sector and area. The request is submitted to the Minister who will ask the
Commission to advise whether an investigation ought to be conducted or the Minister may
direct the Commission to conduct an investigation (s 52(4)).
During an investigation any person who may be able to provide relevant information may
be questioned or be required to furnish information, books, documents or objects that are
material to the investigation (s 53).
Upon completion of an investigation and after considering representations made by
members of the public, the Commission must prepare a report with recommendations and
submit a copy to the Minister for consideration. A copy must also be submitted to the
Director General for noting (s 54(1) & (2)).
When advising the Minister, the Commission must consider aspects such as the cost of
living, alleviation of poverty, conditions of employment and wage differentials and inequal-
ity in the sector an area concerned (s 54(3)).
The Minister considers the report and may decide to make a sectoral determination or
to refer the report back to the Commission for reconsideration (s 55(1) - (3)).
A sectoral determination is published in the Government Gazette and binds those employ-
ers and employees identified in the determination. Employers must keep a copy of the
determination at the workplace.
A sectoral determination takes precedence over the provisions in the BCEA (s 57) and
remains binding until it is amended, cancelled or superseded by a new sectoral determina-
tion (s 56(1)).
A sectoral determination generally includes the following provisions (s 55(4)):
• minimum wages and the manner and timing of the payment of wages;
• the adjustment of remuneration by way of providing for minimum rates or minimum
increases;
• conditions of employment, such as hours of work, overtime, work on Sundays and public
holidays, night work, leave and so forth, although a sectoral determination may not reduce
maternity leave or the protection afforded employees who perform regular night work;
• regulation of payment of remuneration in kind;
• regulation of task-based work, piecework, homework, sub-contracting and contract work;
• minimum standards for housing and sanitation for employees who reside on their employ-
ers’ premises;
• travelling and other work-related allowances;
• minimum conditions of employment for trainees;
• regulation of pension, provident, medical aid, sick pay, holiday and unemployment
schemes or funds;
• minimum conditions of employment for persons other than employees;
• the threshold of representativeness for a registered trade union to have the organisa-
tional right of access to employers’ premises and the right to deduction of trade union
subscriptions in respect of workplaces covered by the sectoral determination; and
• establish the method for determining the employment conditions of labour tenants who
has the right to occupy and use part of a farm (as contemplated in s 3 of the Land
Reform (Labour Tenants) Act 3 of 1996).
A sectoral determination may not be made in respect of the following (s 55(6) & (7)):
• reducing the protection afforded by section 7 of the BCEA, providing for the regulation
of working time with due regard to health, safety and family responsibilities;
• reducing the protection afforded to employees doing regular night work;

• reducing an employee’s entitlement to maternity leave;
16
• ordinary working hours may be changed in a sectoral determination, provided the hours
are more favourable than those contained in the BCEA;
• child or forced labour, save that a sectoral determination may be made to allow for the
17
employment of children in advertising, sport, artistic and cultural activities;
• any matter that has been included in a sectoral determination which has been in effect
for less than 12 months;
• employers and employees who are bound by bargaining or statutory council collective
agreements. If a sectoral determination was in existence and thereafter a collective
agreement is concluded, the sectoral determination ceases to be binding and the collect-
ive agreement prevails (s 56(2)18).
The Minister has promulgated a number of sectoral determinations:
• Sectoral Determination 1: Contract Cleaning Sector, South Africa (GN 622 of 14 May 1999);
• Sectoral Determination 2: Civil Engineering Sector, South Africa (GNR.204 of 2 March 2001);
• Sectoral Determination 3 (repealed by Sectoral Determination 6);
• Sectoral Determination 4: Clothing and Knitting Sector, South Africa (GNR.1007 of 13 Octo-
ber 2000);
• Sectoral Determination 5: Learnership (GN 519 of 15 June 2001);
• Sectoral Determination 6: Private Security Sector, South Africa (GNR.1250 of 30 November
2001, corrected by GNR.879 of 9 September 2005 and amended by GN 786 of 2015),
which repealed Sectoral Determination 3;
• Sectoral Determination 7: Domestic Worker Sector, South Africa (GNR.1068 of 15 August
2002);
• Sectoral Determination 8 (repealed by Sectoral Determination 13);
• Sectoral Determination 9: Wholesale and Retail Sector, South Africa (GNR.1600 of 19 Decem-
ber 2002, replaced by GN 162 of 2016);
• Sectoral Determination 10: Children in the Performance of Advertising, Artistic and Cultural
Activities, South Africa (GNR.882 of 29 July 2004);
• Sectoral Determination 11: Taxi Sector (GNR.409 of 28 April 2005);
• Sectoral Determination 12: Forestry Sector, South Africa (GNR.219 of 17 March 2006); and
• Sectoral Determination 13: Farm Worker Sector, South Africa (GNR.149 of 17 February
2006), which repealed Sectoral Determination 8;
• Sectoral Determination 14: Hospitality Sector, South Africa (GNR 437 of 15 May 2007,
GNR 541 of 2008).
________________________
16 The 2018 amendments omitted to add parental, adoption and commissioning parental leave in the
context of sectoral determinations (whereas these have been added in the context of collective agree-
ments varying conditions of employment). It must be accepted as an oversight and once the new types
of leave come into operation it can safely be presumed that the Minister will not be allowed to reduce
such entitlements in a sectoral determination.
17 Such a determination has been made: Sectoral Determination 10: Children in the Performance of Adver-
tising, Artistic and Cultural Activities, South Africa. The Minister has issued a Code of Good Practice for the
employment of children in the performance of advertising, artistic or cultural activities to regulate child
labour in advertising, dancing, film, modelling, television and theatre performances (GNR.479 of
27 May 2005). The Code must be read in conjunction with the sectoral determination. The Code does
not impose any legal obligation, but provides guidelines to employers.
18 S 56(2) erroneously refers to “collective agreements as contemplated in s 55(6)(a) or (b)”. The cross
reference is incorrect.
3.13 National Minimum Wage Commission (Ch 3 of NMWA)

The Wage Board was established in terms of the Wage Act 5 of 1957. When the Wage Act
was repealed by the BCEA of 1997 the Wage Board was abolished and the Employment
Conditions Commission (ECC) took its place.
The ECC was established in terms of Chapter 9 of the BCEA with the primary aim of
advising the Minister on sectoral determinations and matters concerning basic conditions
of employment. These included the effect of the policies of the government on employ-
ment, the trends in collective bargaining, employment of children and conditions of
employment in the public service.
When the National Minimum Wage Act took effect and the BCEA was amended on
1 January 2019 the ECC was abolished and the National Minimum Wage Commission (the
“Commission”) was established (s 8 of the NMWA).
Like its predecessor, the Commission serves as an advisory body to the Minister. It advises
on sectoral determinations, measures to reduce income differentials and any matter con-
cerning employment conditions. In addition, the Commission must review the national
minimum wage, recommend adjustments thereto and report to the Minister on the impact
the minimum wage has on the economy, collective bargaining and the reduction of income
differentials (s 11 of the NMWA).
An important function assigned to the Commission is the conduct of investigations into
the possible making of a sectoral determination, a function that was previously undertaken
by the Director General (see sectoral determinations, above).
The Commission comprises of a chairperson and three independent experts with
knowledge of the labour market and employment conditions, appointed by the Minister,
plus three members nominated by organised labour, three nominated by organised busi-
ness and three by organised community (s 9 of the NMWA). The members hold office for
five years. The Minister provides a secretariat to assist with the functioning of the Commis-
sion and budgets funds for the Commission in the budget of the Department of Labour
(ss 13 & 14 of the NMWA).
3.14 Monitoring and enforcement (Ch 10 Part A)

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

• A labour inspector who has reasonable grounds to believe that an employer has not com-
plied with any provision of the BCEA, NMWA or unemployment insurance laws may
endeavour to secure from the employer a written undertaking to comply. This may be
done by meeting with or serving a prescribed document on the employer (s 68(1)).
• In endeavouring to secure the undertaking, an inspector may seek to obtain an agreement
between an employer and employee as to the amount owed to the employee. Once an
agreement has been obtained, the inspector may arrange for payment of such an amount
to the employee or, at the employee’s written request, to receive payment on his behalf
(s 68(2)).
• If the employer fails to comply with the written undertaking, the inspector (on behalf of
the Director General) may approach the CCMA to have the undertaking made an arbi-
tration award (s 68(3)). The application must be made on BCEA Form 15 and must be
supported by an affidavit and other documentation (CCMA Rule 31B).
Compliance orders (ss 69–73)

• A labour inspector who has reasonable grounds to believe that an employer has not com-
plied with a provision of the BCEA, the NMWA or any unemployment insurance law may
issue a compliance order, which must set out:
– the name of the employer and the location of every workplace to which the order
applies;
– the provision(s) the employer has failed to comply with and the conduct that consti-
tutes non-compliance;
– any amount that the employer is required to pay to an employee or, in the case of the
national minimum wage, the amount the employer is required to pay which may
include a fine in terms of section 76A;19
– any steps that the employer is required to take, including the cessation of the contra-
vention in question and the period within which those steps must be taken; and
– the maximum fine that may be imposed on the employer for non-compliance in accord-
ance with Schedule 2 to the BCEA (s 69(1) & (2)).
continued
________________________
19 In terms of s 76A of the BCEA a fine may be imposed on an employer who pays its employee less than
the national minimum wage. The fine is twice the value of the under-payment or twice the employee’s
monthly wage, whichever is the greater. For second or further under-payments the fine is thrice the
value of the under-payment or thrice the employee’s monthly wage, whichever is the greater.
• A copy of the compliance order must be served on the employer and every affected
employee (or their representative) and the employer is required to display a copy of the
order in a prominent place (s 69(3) & (4)).
• The employer must comply with the compliance order within the time period stated in the
order or the employer has the option of referring a dispute concerning the compliance
order to the CCMA within that period (s 69(5)).
• An inspector may not issue a compliance order in respect of an amount owed to an
employee in terms of the BCEA or the NMWA if:
– the employee earns in excess of the BCEA threshold amount;
– any proceedings for the recovery of the owed amount have been instituted in the
CCMA or a court of law (unless the proceedings have been withdrawn);
– if the owed amount has prescribed (i.e. if the employer was directed to pay the owed
amount on a date more than 36 months before the date the employee lodged a com-
plaint or the date a written undertaking was secured or a compliance order was issued)
(s 70).
• If an employer fails to comply with a compliance order, an inspector (on behalf of the
Director General) may apply to the CCMA to have the order made an arbitration award
(s 73(1)). The application must be made on BCEA Form 15 and must be supported by an
affidavit and other documentation (CCMA Rule 31B).
• A compliance order will be made an award if the CCMA is satisfied that the order was
served on the employer and that the employer has not objected to the order by referring a
dispute to the CCMA (s 73(2)).
• The Department of Labour must publish on its website a list of all employers who were
issued with compliance orders (s 76A(4)).
3.15 Dispute resolution

A significant departure from the previous dispensation is the fact that the CCMA now has
the jurisdiction to deal with non-compliance with employment laws by an employer. Prior
to the 2018 amendments (which took effect on 1 January 2019) the Department of Labour
(DoL), through its inspectors, enforced compliance by way of written undertakings and
compliance orders and if an employer failed or refused to comply, by approaching the
Labour Court. (Bargaining council agents had the same powers.)
The amendments place non-compliance now under the jurisdiction of the CCMA.
A labour inspector has the power to refer disputes concerning any failure to comply with
the BCEA, the NMWA, the Unemployment Insurance Act and the Unemployment Insur-
ance Contributions Act to the CCMA (s 64(1)(dA). In addition, an inspector can approach
the CCMA to have a written undertaking or a compliance order made an arbitration award
(ss 68(3) & 73(1)).
Prior to the 2018 amendments the CCMA did not have jurisdiction to entertain payment
claims, unless such a claim was consolidated and referred together with a dismissal dispute
to the CCMA (s 74(2)). An employee who complained about non- or under-payment had to
approach the DoL (or a bargaining council with jurisdiction) to claim outstanding monies.
Or, the employee could, of course, institute proceedings in a court of law. It was not pos-
sible to approach the CCMA to claim outstanding monies if that was the only claim. This
position has also changed.
In terms of the new section 73A an employee or worker who earns below the BCEA
threshold is entitled to refer any dispute concerning the failure to pay an amount to the
CCMA if that amount is owing in terms of the BCEA, the NMWA, a contract of employ-
ment, a sectoral determination or a collective agreement. Such a dispute is subject to
compulsory con-arb. Employees earning in excess of the threshold will have to institute
proceedings in the Labour Court or any other court with jurisdiction.
The CCMA (and the Labour Court) retains its jurisdiction, as before the amendments, to
determine a payment claim under the BCEA or the NMWA if it was consolidated with a
dismissal dispute (s 74(2)). If a payment claim is determined by the CCMA or the Labour
Court in conjunction with a dismissal dispute, a compliance order cannot be issued in
respect of those monies (s 74(2A).
If a dispute concerns the entitlement to severance pay only, it can be referred to the
CCMA or a council for conciliation and arbitration (s 41). A dispute concerning any amount
that is owing to an employee as a result of a contravention of the BCEA or the NMWA may
be consolidated with the claim for severance pay (s 74(3)).
Part C of Chapter 10 of the BCEA (ss 78 & 79) bestows certain rights on employees (in-
cluding ex-employees and job applicants) and protects employees against discrimination
when these rights are exercised. An employee may, for example, lodge a complaint with a
labour inspector or his union if the employer is not complying with the BCEA or the
NMWA; an employee may discuss his employment conditions with fellow employees; an
employee may refuse to agree with any condition that contravenes the BCEA, the NWA or a
sectoral determination; an employee may inspect records relating to his employment; and
an employee may participate in proceedings in terms of the BCEA. No person may discrim-
inate against an employee (including an ex-employee or a job applicant) by not allowing
him to exercise his rights or prejudicing him in any way for exercising a right or refusing to
do what is not lawful or disclosing information that he is entitled to disclose.
Disputes about the interpretation or application of Part C of Chapter 10 were, prior to
the 2018 amendments, conciliated by the CCMA or a council and, if unresolved, adjudi-
cated by the Labour Court. As from 1 January 2019, when the amendments took effect, this
position changed. The CCMA now has exclusive jurisdiction to conciliate and arbitrate
disputes of this nature (s 80). A dispute about a contravention of the BCEA or the NMWA
may be consolidated with a dispute concerning Part C (s 74(1)).
An employer must pay interest on any amount due and payable in terms of the BCEA or
NMWA at the rate prescribed by the Prescribed Rate of Interest Act 55 of 1975 (s 75).
The Labour Court has exclusive jurisdiction to grant civil relief arising from a breach of
sections 33A (prohibited conduct by employers), 43, 44, 46, 48 (child and forced labour),
90 (confidentiality) and 92 (obstruction, undue influence, fraud) of the BCEA.
The Labour Court can review the performance of any function provided for in the BCEA
(s 77(2)) and has concurrent jurisdiction with the civil courts to hear and determine any
matter concerning a contract of employment, irrespective of whether any basic condition of
employment constitutes a term of that contract (s 77(3)).
3.16 General
Temporary employment services (s 82): A temporary employment service (TES) is also known as
a labour broker. A labour broker is a person who provides, for reward, to its clients persons
who will render services for the client. This means that the labour broker employs people
and then deploys those people to work for its clients. The labour broker is the employer
and the person who is employed, is the employee of the labour broker. Independent con-
tractors are, of course, excluded because they are not employees. The TES and the client
are jointly and severally liable if the TES does not comply with the BCEA or an applicable
sectoral determination in respect of those employees who are deployed to the client.
The position of a TES and its employees is somewhat different under the LRA. Section
198 of the LRA provides, like section 82 of the BCEA, that the TES is the employer and the
person who performs work at the client’s workplace is the employee of the TES. However, a
distinction is made between the employee who earns below the BCEA threshold and the
one who earns more than the threshold. Section 198A of the LRA applies to those employees
earning below the threshold and defines a “temporary service” as work for a client for a
period not exceeding three months, work which forms a substitute for an employee of the
client who is temporarily absent or work that falls within a category of work that has been
determined to be a temporary service in a bargaining council collective agreement, a sec-
toral determination or ministerial notice. An employee who performs a temporary service,
as defined, is the employee of the TES. However, if the employee performs work that is not
genuinely a temporary service he is deemed, for the purposes of the LRA, to be the em-
ployee of the client and the client is deemed to be the employer. The employee’s employ-
ment is then deemed to be of an indefinite duration (unless a fixed-term contract as
defined in s 198B of the LRA has been concluded) and the employee may not be treated
less favourably than the actual employees of the client, unless justifiable reasons exist for
20
different treatment.
Duration of employment (s 84): For the purposes of determining the duration of an em-
ployee’s employment with an employer, previous employment with the same employer must
be taken into account if the break between the periods of employment was less than one
year. For example, if an employer has to decide whether to pay an employee severance pay
upon retrenchment and the employee had worked for two years, then left and after eight
months returned to the employer, the eight-month interval is ignored and the employee
must be paid for all his years of service.
Codes of Good Practice (s 87): The Minister must, after consulting NEDLAC, issue a Code
of Good Practice on the Arrangement of Working Time and a Code of Good Practice on
the Protection of Employees during Pregnancy and after the Birth of a Child. Any other
codes of good practice may also be issued and the Minister may change or replace any such
code. Any person interpreting or applying the Act must take the relevant codes of good
practice into account.
Confidentiality (s 90): It is an offence for any person to disclose information which he has
acquired in the performance of his powers or duties and which relates to the financial or
business affairs of another person, except if the information is disclosed in terms of an
employment law, for the purposes of the proper administration of the BCEA or for the
purposes of the administration of justice.
Questions
Question 1
The Minister of Labour must, in terms of section 6(3) of the BCEA, determine an amount
(the “BCEA threshold”) in order to exclude higher earners from some of the provisions of
the BCEA. State what the current threshold is, the earnings that are included and disre-
garded to calculate an employee’s remuneration and then explain which provisions of the
BCEA do not apply to those employees earning in excess of the threshold. (15)
Question 2
Anna is employed as an operator in chocolate manufacturing company. She works from
Monday to Friday every week. She earns below the BCEA threshold.
2.1 Explain what her ordinary working hours per day and per week should be. (2)
2.2 She starts working at 7:00 and gets a lunch interval of one hour at 12:00. Does her
lunch break form part of her working hours? (2)
________________________
20 See Assign Services (Pty) Ltd v NUMSA & Others [2018] 9 BLLR 837 (CC) for a discussion of the deeming
provision created in s 198A of the LRA.
2.3 Seven months after Anna started her employment she wants to take a week’s leave to
attend her cousin’s wedding. Explain her leave entitlements and whether she is en-
titled to a week’s leave. (5)
2.4 Anna is pregnant and is expecting her child in five months’ time. Explain what type of
leave she is entitled to and whether she is entitled to pay, if any, during her leave. (6)
2.5 Anna gives birth to a baby girl on 6 September. Her husband is employed at an
insurance company. Is he entitled to any leave? (4)
2.6 Assume Anna is not married, but has been living with her partner for six years. They
decide to adopt a baby and on 30 January the court issues an adoption order, making
them the parents of a two-month old baby boy. Explain whether Anna or her partner
or both are entitled to any leave and, if so, whether they are entitled to any payment
during the leave. (6)
2.7 Anna started her employment on 1 February. On 22 May her father passes away and
she wants to take family responsibility leave. Explain whether she is entitled to any
leave. (5)
2.8 Assume Anna started her employment on 1 February 2019. Her employment contract
stipulated that she would be earning R17 per hour. At the time a sectoral determin-
ation was in place and provided for R17.22 per hour. Her employer paid her R17 per
hour, in accordance with the contract.
(a) Explain whether Anna is entitled to R17 or R17.22 per hour or whether any other
wage applies. (3)
(b) Anna worked on Workers’ Day, a Wednesday, for three hours. Explain and
calculate the payment that is due to her. (6)
(c) Anna believes she is not receiving the correct wages and declares a dispute.
Explain the dispute resolution path she needs to follow to have her dispute
resolved. (6)
Question 3
3.1 A factory worker works from Monday to Friday for eight hours per day, earning R22
per hour. Calculate the payment he must receive if he worked the following hours on
a Sunday:
(a) 3 hours; (3)
(b) 6 hours. (3)
3.2 Assume that this employee works in a hospital (not a factory) and that his normal
working week includes Sundays. Will his Sunday pay be calculated in the same man-
ner as for the factory worker? (3)
Question 4
Xolile started his employment with ABC Printers on 1 February 2018. He works from
Monday to Friday every week.
4.1 Briefly explain his entitlement to paid sick leave. (4)
4.2 On 24 March 2018 he fell ill and his doctor booked him off for ten days. Explain
whether he is entitled to ten days’ paid sick leave. (3)
4.3 Would your answer be different if he fell ill and was booked off for ten days on
24 October 2018? Briefly explain. (3)
Question 5
Thandi works at Beauty Wise, a health and beauty shop, together with 11 other employees.
5.1 Thandi wants to resign because she can get a job at another company. Advise her as
to what notice she is required to give and the manner in which she has to give
notice. (3)
5.2 Advise her employer what payments should be made to Thandi upon her departure
from Beauty Wise. (5)
5.3 Assume Thandi was retrenched (dismissed for operational requirements), in other
words she did not resign. Advise her employer what payments should be made to her
when she is retrenched. (6)
5.4 Assume Beauty Wise became insolvent.
(a) Explain what the effect of the employer’s insolvency is on Thandi’s contract of
employment. (5)
Hint: See Chapter 2 paragraph 2.10 and s 38 of the Insolvency Act.
(b) Explain what payments should be made to Thandi if her services are terminated
because of the employer’s insolvency. (6)
Hint: See s 41 of the BCEA.
Question 6
John is retrenched from B&M Fisheries after ten years of service. His monthly salary is
R15 000 at the time of retrenchment.
6.1 Calculate the amount of severance pay that must be paid to John. (3)
6.2 Assume that John worked for B&M for three years, resigned and nine months later
returned to B&M to take up another position at the company. Thus, at the time of his
retrenchment he had had two periods of service with B&M with a nine month break
in between. Explain how his severance pay must be calculated. (3)
6.3 Assume that, when John was retrenched, his employer informed him that a position
was available for him at B&M’s sister company at a slight reduction in salary (some
R200 per month less than what he earned at B&M) and that, after consultation, the
sister company was willing to employ him.
(a) Because of the reduction in salary John rejects the offer of employment at the
sister company. Is John entitled to severance pay? (3)
(b) Because John refuses the alternative position that was offered to him, B&M re-
trenches him without paying any severance pay. John is of the opinion that he is
entitled to severance pay. Explain the procedures he must follow to have his dis-
pute about entitlement to severance pay be resolved. (4)
Question 7
Lindiwe is employed as a cashier at a supermarket. When she assumes duties she signs a
contract of employment which provides for pay, hours of work, leave and a number of other
employment conditions. A sectoral determination has been issued for the retail sector. The
union which Lindiwe joined some seven months after she started her employment con-
cludes a collective agreement with the employer which also provides for conditions of em-
ployment and minimum wages. There are now three sets of employment conditions and
they are not the same. Explain which set of conditions will apply. (10)
Hint: s 49 of the BCEA.
Question 8
Explain the dispute resolution procedures that must be followed to have the following dis-
putes resolved:
8.1 bank employees who earn between R9 000 and R12 000 per month often work over-
time and during their lunch breaks without receiving any additional remuneration.
Their complaints and requests for payment receive no attention; (8)
8.2 an employee is retrenched (dismissed for operational requirements) after 11 months

of service. He receives no payments. When the employee enquires about severance
pay and notice pay the employer advises that he is not entitled to severance pay and
that he had worked during his notice period before getting dismissed. The employee
believes payments are due to him; (5)
8.3 an employee complains about not being paid the correct wages and when his em-
ployer ignores his complaints, he lodges a complaint with a labour inspector. The
employer is furious and dismisses him; (5)
8.4 an employer is investigated after employees have complained about too little over-
time pay. The inspector who conducts the investigation finds that the employer in-
deed underpaid the employees and in a meeting with the employer, he secures a
written undertaking from the employer in terms of which the employer undertakes to
pay back-pay within 14 days. The employer fails to abide by his undertaking; (3)
8.5 a labour inspector issues a compliance order, ordering an employer to pay an employee
the national minimum wage. The employer ignores the compliance order. (3)
Question 9
Indicate, with reasons, whether the following statements are true or false:
9.1 a cleaner in an office suite works only two hours per day and three days a week. She
must be paid for two hours per day. (2)
9.2 John is the father of a new born baby. He is entitled to 12 consecutive days' parental
leave. (2)
9.3 Annie is a commissioning parent in a surrogate motherhood agreement. She is
entitled to eight weeks’ commissioning parental leave. (2)
9.4 John and Annie are two commissioning parents in a surrogate motherhood agree-
ment. They are both entitled to commissioning parental leave. (2)
9.5 Vivian is entitled to seven days’ family responsibility leave when her life partner passes
away. (2)
9.6 An employer is obliged to provide and pay for transport to its employees performing
night work. (2)
9.7 The owner/manager of a bicycle shop is permitted to require his employees to buy,
at a 25% discount, parts and accessories for their bicycles at the shop. (2)
9.8 An employer is permitted to promise a bonus payment to its employees if the
employees agree not to lodge a complaint with a labour inspector regarding their
long working hours without overtime pay. (2)
Appendix 1
AN EXAMPLE OF A CONTRACT OF EMPLOYMENT
• It is advisable that a written contract, signed by both parties, be drawn up. This form may be
used for the purpose.
• It is further advisable that both the employer and the employee should have a copy of the
contract.
• Any changes to the terms and conditions should be in writing.
• Any reference to the Act refers to the Basic Conditions of Employment Act of 1997.
This agreement is between: And

Employee: Employer:
Next of kin:
Address: Address:
Tel at work: Tel at work:
Home:
TERMS AND CONDITIONS OF EMPLOYMENT
1. Job title
Duties
Starting date
2. Pay R per Hour/day/week/month
which will be paid daily/weekly/fortnightly/monthly
The value of the wage includes payment in kind.

Additional benefits (payment in kind) e.g. food, accommodation, use of land, transport allow-
ance, etc:
Accommodation: R ..........................
Food: R ..........................
Transport allowance: R ..........................
Use of land etc: R ..........................
Other: R ..........................
continued
Deductions from wages:

....................... : R ..........................
....................... : R ..........................
....................... : R ..........................
....................... : R ..........................
....................... : R ..........................
[Section 34 of the Act prohibits deduction from an employee’s wage except in accordance
with a written authority from the employee.]
Proof of payment of wages must be retained.
Overtime (rate per hour)
Method of payment Cash/cheque/transfer to bank or building society account
Bonus(if any)
3. Meal intervals are as follows .......................................................................................................
...........................................................................................................................................................
...........................................................................................................................................................
subject to the following conditions:
• the interval must be one hour after five hours’ work;
• it may be reduced by agreement to 30 minutes;
• it may be dispensed with if the employee works less than six hours per day;
• it does not form part of the hours of work and is, therefore, unpaid, but if the employee is
required to work during meal intervals he must be remunerated;
• any portion of a meal interval in excess of 75 minutes must be remunerated, unless the
employee lives on the work premises.
4. Overtime
The employee hereby agrees to work the following overtime:
...........................................................................................................................................................
On condition that:
• the weekly overtime will not exceed ten hours;
• overtime will be paid at not less than 1½ times the employee’s hourly rate; OR
• the parties agree to no pay for overtime but to time off instead.
5. Work on Sundays
..........................................................................................................................................................
(stipulate here whether the employee will be required to work on Sundays)
subject to the following conditions:
• payment must be not less than the rate for an ordinary day’s work or 1½ times the hourly
rate if the employee normally works on a Sunday, whichever is the larger amount;
• if the employee does not normally work on Sundays payment is double the hourly rate or a
day’s wage, whichever is the larger amount;
• parties may agree to the ordinary rate of pay plus time off equivalent to additional pay the
employee would have received.
continued
6. Public holidays
The parties agree to not fewer than the following public holidays:
New Year’s Day, Human Rights Day, Good Friday, Family Day, Freedom Day, Workers’ Day,
Youth Day, National Women’s Day, Heritage Day, Day of Reconciliation, Christmas Day and
Day of Goodwill.
If an employee works on a public holiday which falls on what would have been an ordinary
working day he must be paid:
• at least double his daily rate; or
• his normal daily rate plus the amount for actual time worked whichever is the larger
amount.
7. Annual leave
• Leave is a minimum of 21 consecutive days per annum with full pay; or
• parties may agree on one day for every 17 days worked or one hour for every 17 hours
worked.
• Leave must be granted not later than six months after completion of the annual leave cycle
(every 12 consecutive months of employment); and
• may not run concurrently with sick leave or a period of notice.
8. Sick leave
The employee is entitled to ....... working days’ sick leave per 36-month cycle with full pay,
provided the first six months of employment have been completed. During the first six
months of employment the employee is entitled to one day for every 26 days worked. Once
the first six months of employment have been completed, the employee is entitled to take any
or all of the leave days to his credit at any time during the cycle.
(An employee is entitled to a number of sick leave days per cycle equivalent to the number of
days he normally works in a six-week period. Therefore, if he works six days per week he is
entitled to 36 days’ leave per cycle; if he works five days per week he is entitled to 30 days’
leave per cycle; if he works four days per week he is entitled to 24 working days per cycle and
so forth.)
The employer and employee may agree to reduce sick leave pay to not less than 75% of the
employee’s normal pay, provided the number of sick leave days is increased proportionately.
9. Maternity leave
• The employee is entitled to four months’ maternity leave, which will commence four weeks
before the expected date of confinement.
• Maternity leave is paid/unpaid . . . . . . .. If paid, the rate of payment is …….…….. . If
unpaid, the employee is entitled to claim maternity benefits under the Unemployment
Insurance Act.
10. Family responsibility leave
• The employee is entitled to three days’ leave with full pay during an annual leave cycle of
12 months.
• Leave can be taken only in the following events: when a child is born,21 is ill or dies or
when a parent, grandparent or sibling dies.
• The employee must provide proof of the event for which leave is sought.
NOTE: An employee is entitled to family responsibility leave only if he works four days or
more per week and has completed the first four months of employment.
continued
________________________
21 Once the Labour Laws Amendment Act of 2018 comes into operation family responsibility leave for the
birth of a child will fall away and the parent will then be entitled to parental leave.
11. Parental leave22

• Parental leave is ten consecutive days.
• Leave to commence when a child is born, when a court issues an adoption order or when a
child to be adopted is placed in the care of the prospective adoptive parent(s).
• The employee has to notify the employer in writing and at least one month before the
commencement date of the intention to take leave and of the commencement and end
dates of the leave;
• Parental leave is paid/unpaid ………….. . If paid, the rate of payment is ………………. If
unpaid, the employee is entitled to claim parental benefits under the Unemployment
Insurance Act.
12. Adoption leave23
• An adoptive parent of a child younger than two years is entitled to ten consecutive weeks
adoption leave OR parental leave.
• Leave to commence on the date a court grants the adoption order or the date the child is
placed in the care of the adoptive parent(s).
dates of the leave.
• Adoption leave is paid/unpaid ………….. . If paid, the rate of payment is ………………. If
unpaid, the employee is entitled to claim adoption benefits under the Unemployment
Insurance Act.
13. Commissioning parental leave24
• An employee who is a commissioning parent in a surrogate motherhood agreement is
entitled to ten consecutive weeks leave OR parental leave.
• Leave to commence on the date the child is born.
dates of the leave.
• Commissioning parental leave is paid/unpaid ………….. . If paid, the rate of payment is
………………. If unpaid, the employee is entitled to claim benefits under the Unemploy-
ment Insurance Act.
14. Notice to terminate services
The following periods of notice apply:
• where the employee has been employed for six months or less, one week’s notice;
• where the employee has been employed for more than six months, but less than one year,
two weeks’ notice;
• where the employee has been employed for more than one year, four weeks’ notice;
• where the employee is a farm or domestic worker who has been employed for more than
six months, four weeks’ notice.
15. Miscellaneous
The parties may further agree to the following:
probationary period(s), time off, pension and/or medical aid schemes, training, funeral
benefits and other allowances, such as housing, school fees etc.
continued
________________________
22 Pending the commencement of the Labour Laws Amendment Act of 2018.

16. Certificate of service

The parties may agree that, upon termination of the contract of employment, the employer
will furnish the employee with a certificate of service.
......................................................... ...........................................................
Employer Employee
It is advisable that a witness also sign the contract.
......................................................... ...........................................................
Witness Witness
Appendix 2
SCHEDULE
CODE OF GOOD PRACTICE ON THE ARRANGEMENT OF WORKING TIME
1. Objectives
The objective of this Code is to provide information and guidelines to employers and employees
concerning the arrangement of working time and the impact of working time on the health,
safety and family responsibilities of employees.
2. Application
2.1 This Code is issued in terms of section 87(1)(a) of the Basic Conditions of Employment
Act, 1997 (Act No. 75 of 1997), (BCEA) and must be read in conjunction with the BCEA, par-
ticularly Chapter Two, which governs the regulation of working time.
2.2 Section 7 of the BCEA requires employers to regulate the working time of each employee:
2.2.1 in accordance with the provisions of any Act governing occupational health and safety;
2.2.2 with due regard to the health and safety of employees;
2.2.3 with due regard to this Code of Good Practice;
2.2.4 with due regard to the family responsibilities of employees.
2.3 This Code applies to all employers and employees covered by the BCEA. This Code of
Good Practice is of particular significance for employees who perform shift work or regular night
work and to their employers.
2.4 The norms established by this Code are general and may not be appropriate for all work-
places. A departure from the Code may be justified in proper circumstances. For example, the
number of employees employed in an establishment may warrant a different approach.
3. Relationship to health and safety laws

3.1 The regulation of working time is closely connected to the protection and promotion of
the health and safety of employees and, in some cases, members of the public.
3.2 Employers may be required to take working-time schedules into account in complying with
their general duties to provide and maintain a working environment that is safe and without risk
to the health of employees in terms of the Occupational Health and Safety Act, 1993 (Act No. 85
of 1993), (OHASA) and the Mine Health and Safety Act, 1996 (Act No. 29 of 1996), (MHSA).
3.3 Key aspects of these Acts are the following:
3.3.1 Employers must conduct a risk assessment. This requires that they identify hazards and
assess the risk that they pose to the health and safety of employees. The results of the risk assess-
ment must be recorded.
3.3.2 Employers must implement appropriate measures to eliminate or control hazards
identified in the risk assessment.
3.3.3 Employers must train and supply information to employees about the risks to their
health and safety and the measures taken to control such risks.
3.3.4 Elected worker health and safety representatives and committees are entitled to partici-
pate in the risk assessment and control of hazards.
3.3.5 Employees have a duty to take reasonable steps to protect their own health and safety
and that of other employees.
3.4 Employers who engage employees to perform regular night work must ensure that these
employees are informed of the health and safety hazards associated with the work that they would
perform. This provision of the BCEA reiterates the obligation on employers in terms of OHASA
and MHSA.(an employee is regularly working at night if he or she works more than one shift per
week (or 50 shifts per year) of which more than one hour falls after 23:00 or before 06:00)
4. Design and evaluation of shift systems

4.1 The design of shift rosters must be sensitive to the impact of these rosters on employees
and their families. This information can be obtained during consultations, negotiations or by cir-
culating individual questionnaires to employees.
4.2 The information that an employer may require on the effect of shift rosters includes:
4.2.1 the ranked preferences of employees for different shift systems (this should include
factors such as rate of rotation, length of shift, extension of operating time, starting and finishing
times of shifts, weekends off, off-duty periods);
4.2.2 the employee’s views of the advantages and disadvantages of the existing or proposed
shift system;
4.2.3 aspects of the employee’s work that could affect the determination of a suitable shift
length;
4.2.4 how an existing or proposed shift schedule affects or might affect the health and safety
of employees;
4.2.5 means, costs and availability of transport to and from the place of residence and the
personal security of the employee while commuting;
4.2.6 the childcare needs of the employees.
4.3 The information that will be required will depend on whether an employer is introducing
a shift system for the first time or is re-evaluating or redesigning a shift system.
5. Arrangement of shifts
The following recommendations apply to the arrangement of shift work:
5.1 Overtime should be avoided, especially in occupations involving special hazards or heavy
physical or mental strain.
5.2 The changeover from one shift to another during the working day should, where appro-
priate, include a brief period of overlap of the two crews in order to pass on any information that
is needed by the subsequent crew.
5.3 If appropriate and if it is possible within legal requirements, workers whose skills are inter-
changeable should be allowed to exchange a shift with another worker.
5.4 The shift schedule should be displayed or distributed for easy access by all workers, and
should be presented in a readily understandable form.
5.5 Workers should receive reasonable notice in advance of scheduled hours of work and of
any foreseeable changes to the schedule.
5.6 Arrangements should be considered to accommodate the special needs of workers such as
pregnant and breast-feeding workers, workers with family responsibilities, older workers, disabled
workers or workers with health problems, and also workers with personal preferences for the
scheduling of their own free time.
6. Design of shift rosters

The following factors should be taken into account in the design of rosters for semi-continuous
and continuous shift work:
6.1 The frequency of night work, weekend work and work on public holidays should be lim-
ited as much as possible for each worker.
6.2 The frequency of shift rotation should take account of the difficulties workers may have in
adapting to night work.
6.3 It is preferable that shifts be rotated in a forward direction (morning to afternoon to
night), bearing in mind workers’ preferences, local conditions and difficulties in scheduling a
long period of rest after spells of night shifts.
6.4 Night shifts should be no longer than morning and afternoon shifts. Where long night
shifts are used they should be carefully reviewed to find ways to avoid excessive fatigue. Successive
long night shifts should be avoided to the extent practicable.
6.5 Rest periods for shift workers should be scheduled to fall on weekends a certain minimum
number of times during a given period.
7. Performance of safety-critical tasks
7.1 Employers should take particular care in the timing of safety-critical tasks in shift cycles
and during individual shifts.
7.2 These should, to the greatest extent possible, not be undertaken at a time when the
employees involved may be fatigued or have low levels of alertness.
7.3 This is of particular importance to employers, such as operators of major hazard installa-
tions whose activities have a direct impact upon the public, and operators of services such as mass
transportation or goods transportation.
8. Health assessment and counselling
8.1 In terms of section 17(3)(b) of the BCEA an employer, if requested by an employee who is
performing regular night work, must make arrangements for the employee to undergo a medical
examination. An employee is entitled to have such an examination at the time of commencing
regular night work and thereafter at regular intervals while he or she continues to work regularly
at night.
8.2 The examination should be performed by a medical practitioner or by a health profession-
al who could refer employees to a medical practitioner in appropriate cases. This could include
qualified staff employed in a workplace clinic. The cost of the examination is for the account of
the employer although arrangements could be made for the cost to be covered through medical
aid.
8.3 The timing of these examinations should be determined by individual or collective agree-
ment in the light of the employee’s health status, the nature of the work the employee performs
and the employee’s working hours.
8.4 The examination should cover:
8.4.1 any difficulties the employee may be having in adapting to night-work routines;
8.4.2 any health problems that the employee is manifesting;25
8.4.3 any psychological, emotional and social stresses experienced by the employee, strat-
egies that may help the employee cope with night work and educational input on the risks of shift
work;
8.4.4 insomnia and symptoms of sleep deprivation such as irritability and chronic fatigue;
8.4.5 use of medication, the effectiveness of which depends upon circadian (daily body)
rhythms;
8.4.6 diet and use of caffeinated drinks, alcohol, sleeping pills, and cigarettes.
8.5 In certain circumstances, it may be appropriate to advise certain individuals against shift
work. These circumstances include where the effectiveness of medication is fundamentally
affected by circadian (daily body) rhythms, workers with gastro-intestinal or cardiovascular dis-
orders, and epileptics.
8.6 The examination should also include educational input on the health risks that may be
associated with the employee’s work schedule and as coping strategies that may assist the
employee.
9. Working environment
Employers should regularly assess whether the work environment, in particular the lighting and
heating, are adequate for the health, safety and physical comfort of employees, particularly night
workers.
________________________
25 Among the health conditions that should be investigated are mild asthma; non-insulin-dependent dia-
betes mellitus; cardiac risk factors like hypertension, elevated cholesterol; depression; seizures; frequent
indigestion; mild irritable bowel syndrome; Crohn’s disease; peptic ulcer; weight loss and general nutri-
tional status.
10. Management services

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

Employers should provide appropriate and up-to-date information to employees about coping
strategies, both in the workplace and at home. Strategies that will assist employees to cope with
shift work and night work include:
11.1 maintaining a regular sleeping routine;
11.2 taking steps to block out noise and light for employees who have to sleep in the day;
11.3 maintaining a healthy diet;
11.4 exercise and relaxation.
Glossary
Continuous shift work: the employer operates 24 hours per day, seven days per week, all year
round.
Semi-continuous shift work: the employer operates 24 hours per day without a daily break, but with
a break at the weekend.
Discontinuous shift work the employer operates fewer than 24 hours per day with at least one daily
break. A “two-shift” system is the most common discontinuous shift system.
Short or part-time shifts: daily scheduled working hours that are substantially shorter than eight
hours.
Long shifts: daily scheduled working hours that are substantially longer than eight hours.
Rotating (or alternating) shifts: workers alternate between different shifts. There are three key ele-
ments to rotation:
(i) the direction of rotation: rotation can either be forward (clockwise, for instance, morning to
afternoon to night) or backward (counter-clockwise). In forward or advancing shifts, the
starting time of one shift in a shift worker’s schedule is always later on the 24-hour clock
than the previous shift. In a continuous shift system workers will work a morning shift. In
backward or delaying rosters, one shift always begins at an earlier time than the previous
shift;
(ii) the frequency: employees may change shifts every week or at shorter or longer intervals;
(iii) the length of the cycle: the period required for a complete schedule of rotation, after which
the cycle is repeated.
Fixed (or permanent) shifts: employees work permanently on a single shift.
Appendix 3
SCHEDULE
CODE OF GOOD PRACTICE ON THE PROTECTION OF EMPLOYEES
DURING PREGNANCY AND AFTER THE BIRTH OF A CHILD
1. Introduction
1.1 Many women work during pregnancy and many return to work while they are still breast-
feeding.
1.2 The objective of this Code is to provide guidelines for employers and employees concern-
ing the protection of the health of women against potential hazards in their work environment
during pregnancy, after the birth of a child and while breast-feeding.
2. Application of the Code
2.1 This Code is issued in terms of section 87(1)(b) of the Basic Conditions of Employment
Act (BCEA) 75 of 1997.
2.2 It is intended to guide all employers and employees concerning the application of section
26(1) of the BCEA which prohibits employers from requiring or permitting pregnant or breast-
feeding employees to perform work that is hazardous to the health of the employee or that of
her child.
2.3 Workplaces may be affected differently depending upon the type of business and sector
they are engaged in and the physical, chemical and biological hazards to which employees may
be exposed in the workplace.
2.4 The norms established by this code are general and may not be appropriate for all work-
places. A departure from the code may be justified in the proper circumstances. For example,
the number of employees employed in an establishment may warrant a different approach.
3. Contents
This Code:
3.1 sets out the legal requirements relevant to the protection of the health and safety of preg-
nant and breast-feeding employees;
3.2 sets out a method for assessing and controlling the risks to the health and safety of preg-
nant and breast-feeding employees;
3.3 lists the principal physical, ergonomic, chemical and biological hazards to the health and
safety of pregnant and breast-feeding employees and recommends steps to prevent or control
these risks. These are listed in Schedules One to Four, which are included for guidance and are
not exhaustive.
4. Legal requirements
4.1 The Constitution protects the right to bodily and psychological integrity, which includes
the right to make decisions concerning reproduction [section 12(2)] and gives every person the
right to health services, including reproductive health care [section 27(1)(a)].
4.2 No person may be discriminated against or dismissed on account of pregnancy.26
4.3 Employers are required to provide and maintain a work environment that is safe and
without risk to the health of employees. This includes risks to the reproductive health of employ-
ees. These duties are established in terms of both the Occupational Health and Safety Act
(OHASA) 85 of 1993 and the Mine Health and Safety Act (MHSA) 27 of 1996. Key aspects of
these Acts are:
4.3.1 employers must conduct a risk assessment, which involves identifying hazards,
assessing the risk that they pose to the health and safety of employees. and recording the results
of the risk assessment.
________________________
26 The relevant provisions establishing this right are s 9(3) and (4) of the Constitution; s 187(1) of the
Labour Relations Act 66 of 1995 and s 6 of the Employment Equity Act of 1998.
4.3.2 employers must implement appropriate measures to eliminate or control hazards

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

5.1 Section 26(1) of the BCEA prohibits employers from requiring or permitting a pregnant
employee or an employee who is breast-feeding to perform work that is hazardous to the health
of the employee or the health of her child. This requires employers who employ women of child-
bearing age to assess and control risks to the health of pregnant or breast-feeding employees and
that of the foetus or child.
5.2 Employers should identify, record and regularly review:
5.2.1 potential risks to pregnant or breast-feeding employees within the workplace;
5.2.2 protective measures and adjustments to working arrangements for pregnant or
breast-feeding employees.
5.3 Where appropriate, employers should also maintain a list of employment positions not
involving risk to which pregnant or breast-feeding employees could be transferred.27
5.4 Employers should inform employees about hazards to pregnant and breast-feeding
employees and of the importance of immediate notification of pregnancy.
5.5 Workplace policies should encourage women employees to inform employers of their
pregnancy as early as possible to ensure that the employer is able to identify and assess risks and
take appropriate preventive measures.
5.6 The employer should keep a record of every notification of pregnancy.
5.7 When an employee notifies an employer that she is pregnant her situation in the work-
place should be evaluated. The evaluation should include:
5.7.1 an examination of the employee’s physical condition by a qualified medical profes-
sional;
5.7.2 the employee’s job;
5.7.3 workplace practices and potential workplace exposures that may affect the employee.
5.8 If the evaluation reveals that there is a risk to the health or safety of the pregnant employee
or the foetus, the employer must:
5.8.1 inform the employee of the risk;
5.8.2 after consulting the employee and her representative, if any, determine what steps
should be taken to prevent the exposure of the employee to the risk by adjusting the employee’s
working conditions.
5.9 The employee should be given appropriate training in the hazards and the preventive
measures taken.
5.10 If there is any uncertainty or concern about whether an employee’s workstation or work-
ing conditions should be adjusted, it may be appropriate in certain circumstances to consult an
occupational health practitioner. If appropriate adjustments cannot be made, the employee
should be transferred to an alternative position in accordance with section 26(2) of the BCEA.
________________________
27 In terms of s 26(2) of the BCEA an employer must offer suitable alternative employment to an em-
ployee during pregnancy if her work poses a danger to her health or safety or that of her child or if the
employee is engaged in night work (between 18:00 and 06:00), unless it is not practicable to do so.
Alternative employment must be on terms that are no less favourable than the employee’s ordinary
terms and conditions of employment.
5.11 Employers must keep the risk assessment for expectant or new mothers under regular
review. The possibility of damage to the health of the foetus may vary during the different stages
of pregnancy. There are also different risks to consider for workers who are breast-feeding.
5.12 Arrangements should be made for pregnant and breast-feeding employees to be able to
attend antenatal and postnatal clinics as required during pregnancy and after birth.
5.13 Arrangements should be made for employees who are breast-feeding to have breaks of
30 minutes twice per day for breast-feeding or expressing milk each working day for the first six
months of the child’s life.
5.14 Where there is an occupational health service at a workplace, appropriate records should
be kept of pregnancies and the outcome of pregnancies, including any complications in the
condition of the employee or child.
6 The identification and assessment of hazards
6.1 Physical hazards
The control of physical hazards in the workplace includes the recognition, evaluation and con-
trol of:
6.1.1 exposure to noise, vibration, radiation, electric and electromagnetic fields and radio-
active substances;
6.1.2 work in extreme environments;
6.1.3 control of the thermal environment (heating and air conditioning).
Schedule One describes the extent to which certain of these physical agents may constitute a
hazard to the health and safety of pregnant and breast-feeding employees and suggests methods
to prevent or control these hazards.
6.2 Ergonomic hazards
The application of ergonomics involves ensuring that work systems are designed to meet the
employee’s e needs for health, safety and comfort. A range of ergonomic risk factors may pose
hazards to the health and safety of pregnant and breast-feeding employees and should be identi-
fied and assessed as part of the risk assessment programme. These include:
6.2.1 heavy physical work;
6.2.2 static work posture;
6.2.3 frequent bending and twisting;
6.2.4 lifting heavy objects and movements requiring force;
6.2.5 repetitive work;
6.2.6 awkward postures;
6.2.7 no rest;
6.2.8 standing for long periods;
6.2.9 sitting for long periods.
Schedule Two describes the extent to which some of these factors may constitute a hazard to the
health and safety of pregnant and breast-feeding employees and suggests methods to prevent or
control these hazards.
6.3 Chemical hazards
Contact with harmful chemical substances may cause infertility and foetal abnormalities. Some
chemicals can be passed to the baby during breast-feeding and could possibly impair the health
and the development of the child.
The Hazardous Chemical Substances Regulations, 1995, issued under OHASA, apply to all
employers who carry out activities, which may expose people to hazardous chemical substances.
These employers must assess the potential exposure of employees to any hazardous chemical
substance and take appropriate preventive steps. The Regulations set maximum exposure levels
for some 700 hazardous chemical substances.
The Hazardous Chemical Substances Regulations require employers to inform and train
employees about, and in any substance to which they are or may be exposed. This must include
information on any potential detrimental effect on the reproductive ability of male or female
employees.
Regulation 7(1) of the General Administrative Regulations, 1996, under OHASA requires
manufacturers, importers, sellers and suppliers of hazardous chemical substances used at work to
supply a Material Safety Data Sheet (MSDS) which must include information on any reproduc-
tive hazards. Every employer who uses a hazardous chemical substance must be in possession of
the relevant MSDS and must make it available on request to affected persons.
With the exception of the Lead Regulations, there are no regulations, which set maximum
28
exposure levels of specific applications for women of childbearing age or pregnant women. In
view of the absence of occupational health standards for the exposure of pregnant or breast-
feeding women to chemical substances, care should be taken to minimise exposure to chemicals,
which can be inhaled, swallowed or absorbed through the skin. Where this cannot be achieved,
employees should be transferred to other work in accordance with section 26(2) of the BCEA.
6.4 Biological hazards
Many biological agents, such as bacteria and viruses, can affect the unborn child if the mother is
infected during pregnancy. Biological agents may also be transferred through breast-feeding or
by direct physical contact between mother and baby. Health workers, including service workers
in health-care facilities and workers looking after animals or dealing with animal products are
more likely to be exposed to infection than other workers. Employees who have close contact
with young children, such as teachers and edu-care workers, are at increased risk of exposure to
rubella (German measles) and varicella (chicken pox).
Universal hygiene precautions are required to prevent disease. These include high standards of
personal hygiene, surveillance of staff in high-risk areas, appropriate sterilisation and disinfecting
procedures, designation of persons to be responsible for health and safety, the use of protective
clothing and gloves and the avoidance of eating or smoking in laboratories or other risk areas.
Some of the biological agents that are known to constitute a hazard to the health of breast-
feeding or pregnant women are listed in Schedule Four.
7 Aspects of pregnancy that may affect work
Employers and employees should be aware of the following common aspects of pregnancy that
may affect work:
7.1 As a result of morning sickness employees may be unable to perform early shift work.
Exposure to nauseating smells may also aggravate morning sickness.
7.2 Backache and varicose veins may result from work involving prolonged standing or sitting.
Backache may also result from work involving manual handling.
7.3 More frequent visits to the toilet will require reasonable access to toilet facilities and consid-
eration of the employee’s position if leaving the work she performs unattended poses difficulties.
7.4 The employee’s increasing size and discomfort may require changes of protective clothing,
changes to work in confined spaces and changes to her work where manual handling is involved.
Her increasing size may also impair dexterity, agility, co-ordination, speed of movement and
reach.
7.5 The employee’s balance may be affected making work on slippery or wet surfaces difficult.
7.6 Tiredness associated with pregnancy may affect the employee’s ability to work overtime
and to perform evening work. The employer may have to consider granting rest periods.
________________________
28 European Council Directive 92/321EEC classifies some 200 substances and preparations as falling into
one of the following categories: possible risks of irreversible effects (R40), may cause cancer (R45), may
cause heritable genetic damage (R46), may cause harm to the unborn child (R61), possible risk of harm
to the unborn child (R63), may cause harm to breastfed babies (R64). The actual risk to health of these
substances can only be determined after a risk assessment of a substance at a place of work. In other
words, although the substances listed may have the potential to endanger health or safety, there may be
no risk in practice: for example, when exposure is below the level that might cause harm.
Appendix 4
Basic Conditions of BCEA 4

Employment Act, 1997
Section 33 PAYSLIP
READ THIS FIRST NAME OF EMPLOYER: ...................................................................................
Ð
ADDRESS: .........................................................................................................
............................................................................................................
............................................................................................................
NAME OF EMPLOYEE: ...................................................................................
ID NO: .......................................... EMPLOYEE NUMBER: ...........................
OCCUPATION/GRADE:.................................................................................
PAY PERIOD: FROM................... TO .............................................................
WHAT IS THE PUR- BASIC WAGE: ...................................................................................................
POSE OF THIS FORM? MANNER OF PAYMENT: m PER HOUR m PER DAY m PER WEEK
This form is a record of informa- m PER FORTNIGHT m PER MONTH
tion about remuneration.
Rate No. of Rand
WHO FILLS IN hours earned
THIS FORM? Ordinary hours worked .......... ................ ..................
The employer. Overtime worked .......... ................ ..................
Sundays time worked .......... ................ ..................
WHERE DOES THIS Public holidays time worked .......... ................ ..................
FORM GO? Payment in kind .......... ................ ..................
To the employee. Allowances (specify) .......... ................ ..................
............................................... .......... ................ ..................
INSTRUCTIONS
............................................... .......... ................ ..................
This information must be given
to each employee – TOTAL R
z At the workplace or at a place
agreed to by the employee; DEDUCTIONS: P.A.Y.E. ..............................................................
and
UIF ....................................................................
z during the employee’s ordin-
ary working hours or within UNION .............................................................
15 minutes of the commence- OTHER (Full details) .....................................................
ment or conclusion of those
hours. ...........................................................................
z The full value of remunera- TOTAL R
tion including payment in
kind must be specified.
z This is only a model and not a TOTAL AMOUNT DUE R
prescribed form. Completing a
document in another format
containing the same informa-
tion is sufficient compliance
with the regulation.
Appendix 5
Basic Conditions of BCEA 5

Employment Act, 1997
Section 42
CERTIFICATE OF SERVICE
READ THIS FIRST
I ..........................................................................................................
Ð
(name and designation of person)
of
.............................................................................................................
(full name of employer)
address: ..............................................................................................
.............................................................................................................
WHAT IS THE PUR-
POSE OF THIS FORM? in the ..................................................................................... (trade)
This form is proof of employ- declare that
ment with an employer.
.............................................................................................................
(full name of employee)
WHO FILLS IN
THIS FORM? .............................................................................................................
(I.D. no.)
The employer.
was in employment
WHERE DOES THIS from .............................................. until ............................................

FORM GO?
as
To the employee.
.............................................................................................................
(type of work/occupation)
INSTRUCTIONS
.............................................................................................................
This form may be issued upon
termination of employment. any other information .......................................................................
On termination of service this employee was earning: R ................

NOTE
............................................................................. (amount in words)
In terms of section 42(g) the
reason for termination of em- m per hour m per day m per week
ployment must only be given if
requested by the employee. m per fortnight m per month m per year
This is only a model and not a pre-
scribed form. Completing a docu-
ment in another format con-
taining the same information is ............................................... .................................................
sufficient compliance with the Employer’s signature Date
regulation.
Appendix 6
Minimum wages for learners in a learnership agreement

Schedule 2 to the National Minimum Wage Act
NQF level Credits already earned Minimum allowance

by learner per week
Levels 1 to 2 0–120 R301.01
121–240 R601.99
Level 3 0–120 R301.01
121–240 R566.93
241–360 R928.11
Level 4 0–120 R301.01
121–240 R602.05
241–360 R928.11
361–480 R1354.51
Levels 5 to 8 0–120 R301.01
121–240 R652.15
241–360 R975.75
361–480 R1374.61
481–600 R1755.84
4
EMPLOYMENT EQUITY ACT 55 OF 1998
4.1 Introduction
In this chapter we discuss a field of our law that has undergone dramatic changes over the
last two decades. When the first edition of this book was published the Industrial Court,
armed with its equitable jurisdiction, developed this branch of the law on a case-by-case basis
as a sub-species of the jurisprudence on unfair labour practice under the Labour Relations
Act of 1956. Since 1994 we have seen far-reaching constitutional changes and statutory
initiatives, such as the adoption of the final Constitution of the Republic of South Africa of
1996, the new Labour Relations Act of 1995, implemented on 11 November 1996, a new
Basic Conditions of Employment Act and the Employment Equity Act 55 of 1998. Chapter 2
of the Equity Act, dealing with unfair discrimination, came into operation on 9 August
1999. The rest of the Act took effect on 1 December 1999. Some significant amendments to
the EEA were enacted on 1 August 2014 when the Employment Equity Amendment Act
47 of 2013 took effect.
Constitutional equality, as formulated in section 9 of the Constitution, forms the back-
drop of the Employment Equity Act and should always be considered when studying employ-
ment equity. The relevant provisions in the Constitution will be discussed briefly before
consideration is given to the Employment Equity Act.
4.2 Constitutional equality

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

In terms of section 9(1) everyone is equal before the law. The right to equal protection of
the law is thus guaranteed. This section can be regarded as the typical embodiment of
97
equality as a fundamental value that must be upheld. As the Constitutional Court, in Prins-
loo v Van der Linde 1997 (3) SA 1012 (CC), so succinctly put it: “human beings are inher-
ently equal in dignity”. It follows then that treatment which impairs the fundamental
dignity of a person is unfair.
4.2.2 The affirmative action clause (s 9(2))

In the old South Africa many people were discriminated against unfairly and measures were
required to address the inequities of the past. In the workplace in particular it is necessary
to introduce measures to ensure equal opportunities for all those people who were dis-
advantaged by the discriminatory laws and practices of the past. It is a well-known fact that
women and black people did not generally enjoy the same benefits and advantages as white
men.
Equality includes equal enjoyment of all rights and freedoms, not only in society in gen-
eral, but also in the workplace. Hence the requirement in section 9(2) that measures be
taken to protect and advance people who have been disadvantaged by unfair discrimin-
ation. Affirmative action is the measure introduced by law to create equal opportunities in
the workplace for all peoples of South Africa. Affirmative action entails the appointment
and advancement of previously disadvantages persons.
Affirmative action was initially denounced by some as reverse discrimination. It is not
within the scope of this book to analyse the theories and philosophies for and against this
argument. Suffice it to say that, if one accepts that discrimination is aimed at excluding some
people (as was the case in the old South Africa), affirmative action cannot be discrimination
because its aim is to include rather than to exclude. Affirmative action is necessary as a
positive action to overcome institutionalised discrimination. Anti-discrimination laws are
not sufficient to achieve this because they only disallow discriminatory behaviour; they do
not mandate inclusive measures, as affirmative action does. See inter alia Motala & Another v
University of Natal 1995 (3) BCLR 374 (D); Minister of Finance & Another v Van Heerden 2004
(6) SA 121 (CC).
Affirmative action and the laws around it evolved since its introduction in the late 1990s.
It is clearer what is expected of employers when they appoint job applicants to vacant posts
or promoting employees. It was, for example, held in SAPS v Solidarity obo Barnard (2014 (6)
SA 123 (CC) that an employer may refuse to appoint or promote a person from a desig-
nated group if that group is already adequately or over-represented in a particular occu-
pational level. The same approach was adopted in Solidarity & Others v Department of
Correctional Services & Others (POPCRU & Another as amici curiae) 2016 (10) BCLR 1349 (CC)
and the Constitutional Court confirmed that this principle (the so-called Barnard prin-
ciple) is applicable to all the designated groups, as well as to gender (i.e. male and female).
The Court further held that, in trying to achieve the targets in the employment equity plan,
an employer is required to consider both the national and regional economically active
population. It is incorrect to consider only national demographics.
4.2.3 The anti-discrimination clause (s 9(3) & (4))

Discrimination means different treatment of different people. It is not discrimination per se
that should be eradicated, but unfair discrimination. Unfair discrimination is different treat-
ment of people on an arbitrary ground or using inappropriate criteria to differentiate
between one person or group and another. Fair discrimination, on the other hand, is,
according to the Oxford Dictionary, “the careful observation of distinctions, having good
judgement”, in other words to differentiate on just grounds. The Basic Conditions of Em-
ployment Act, for example, prohibits the employment of pregnant women for a period of
four months. This is discrimination based on gender, but it is not unfair. Thus, the failure
to differentiate accurately and justly constitutes unfair discrimination.
It is not differentiation as such that is prohibited by the Constitution and the EEA, but
invidious differentiation – that is, unfair discrimination. See Chirach Tyre Company (Pty) Ltd
t/a Falcon Tyre Centre v Minister of Trade and Industry & Another 1997 (3) BCLR 319 (T);
Employment Equity Act 55 of 1998 99
Union of Refugee Women v Director: Private Security Industry Regulatory Authority 2007 (4) SA 395
(CC).
In terms of section 9(3) no-one may unfairly discriminate, directly or indirectly, against
another person on any of the following grounds: race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
This list of “stated (or “listed”) grounds” is preceded by the word “including”, which indi-
cates that unfair discrimination is not limited to the stated grounds only. This is not a
closed list and other grounds of differentiation, not mentioned in section 9(3), may also
result in unfair discrimination.
Section 9(3) and (4) refers to direct and indirect unfair discrimination. Direct discrimin-
ation occurs where a person is treated differently because he or she belongs to a particular
category and such treatment is to his or her disadvantage. If, for example, an advertisement
calls for males only to apply for a position, it constitutes direct discrimination against
women. In contrast, indirect discrimination is present where prima facie neutral criteria are
used to differentiate, but these so-called objective criteria operate to the systematic dis-
advantage of a particular category of persons. If, for example, a minimum weight or height
is required for a certain job, it will exclude more women than men from being able to apply
for the position. In the context of section 9(3) and (4) see Langemaat v Minister of Safety and
Security & Others 1998 (4) BCLR 444 (T); National Coalition for Gay and Lesbian Equality &
Others v Minister of Home Affairs & Others 2000 (2) SA 1 (CC); Hoffmann v South African Air-
ways 2001 (1) SA 1 (CC); Satchwell v President of the Republic of South Africa 2002 (6) SA 1
(CC); Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC).
In City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC) it was held that conduct which
may appear to be neutral and non-discriminatory may nonetheless result in discrimination.
For this reason the legislature included both direct and indirect unfair discrimination in
section 9, thereby demonstrating its concern about not only discriminatory conduct as such,
but also the consequences of conduct that may appear non-discriminatory. Proof of an
intention to discriminate is not required. What is required, is that differentiation must be
proved and also that the differentiation was unfair. Both elements must be determined
objectively.
4.2.4 Proof of discrimination

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

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

The EEA applies to all employees and employers, the only exclusions being members of the
National Defence Force, the National Intelligence Agency, the South African Secret Ser-
vice, the South African National Academy of Intelligence and the directors and staff of
Comsec. The employees excluded from the Act can bring unfair discrimination matters
before the Constitutional Court or lodge complaints with the Human Rights Commission.
The Act binds the State.
Chapter 2 of the Act, which prohibits unfair discrimination, applies to all employees and
employers. All employers must take steps to promote equal opportunities in the workplace
and to eliminate unfair discrimination in employment policies and practices. Job applicants
are, for the purposes of Chapter 2, regarded as “employees” and can rely on the provisions
of Chapter 2 if they allege that their non-appointment to a post was based on unfair dis-
crimination.
Chapter 3 of the Act requires affirmative action to be implemented and applies to “des-
ignated employers” and people from “designated groups” only.
A designated employer is:
• a person who employs 50 or more employees;
• a person who employs fewer than 50 employees, but has a total annual turnover that is
equal to or above the applicable annual turnover of a small business in terms of Sched-
ule 4 to this Act;
• a municipality;
• an organ of State, but excluding local spheres of government, the National Defence
Force, the National Intelligence Agency and the South African Secret Service; and
• an employer who, in terms of a collective agreement, becomes a designated employer to
the extent provided for in the collective agreement.
An employer who is not a designated employer and who is thus excluded from Chapter 3
may become subject to the provisions thereof in one of the following manners:
• an employer who is not a designated employer may notify the Director General of Labour
that it intends to comply with Chapter 3 as if it were a designated employer (s 14); and
• if the Labour Court decides that an employer has unfairly discriminated against an
employee, the Court may make an order directing an employer to comply with Chapter 3
as if it were a designated employer (s 50(2)(d)).
Designated groups are:
• black people, which is used in a broad context to include Africans, Coloureds and
1
Indians;
• women; and
• people with disabilities.
Members of the above designated groups must be citizens of the Republic of South Africa
by birth or descent or by naturalisation. A person must have become a citizen by naturalisa-
tion before 27 April 1994 or, if naturalisation was acquired after 26 April 1994, the person
was entitled to acquire citizenship by naturalisation prior to said date, but was precluded by
the apartheid policies of the past.
Although the EEA distinguishes between Africans, Coloureds and Indians and between
blacks, women and people with disabilities, no preferential ranking is specified. No pro-
vision is made for compound groups, such as black women.
4.5 Chapter 2 – Prohibition of unfair discrimination
4.5.1 Meaning of “unfair discrimination”

The Discrimination (Employment and Occupation) Convention No 111 of 1958 of the ILO
defines discrimination as “any distinction, exclusion or preference made on the basis of
race, colour, sex, religion, political opinion, national extraction or social origin, which has
the effect of nullifying or impairing equality of opportunity or treatment in employment
and occupation . . . and any distinction, exclusion or preference in respect of a particular
job based on the inherent requirements thereof shall not be deemed to be discrimination”.
The following is suggested as a general definition of unfair discrimination: discrimin-
ation is the use of irrelevant criteria to distinguish between individuals or groups, which has
the purpose or effect of less favourable consequences for members of one group in relation
to those of another or for one individual in relation to another.
________________________
1 Chinese people have been declared part of the designated groups following the decision in Chinese Asso-
ciation of South Africa & Others v The Minister of Labour & Others, case no 59251/2007.
In the employment context this definition implies the following:

• any consideration of criteria not related to the employment relationship could constitute
discrimination if the consequences thereof operate to the disadvantage of one or more
individuals or groups or if such a purpose is envisaged. The consequences may be viewed
broadly so as to include purely the negative effect on the victim’s affective well-being;
• any distinction based on the inherent requirements of the job will not be regarded as
discrimination. Generally speaking, fair discrimination requires that the criteria used to
differentiate must be relevant to the business objectives of the organisation and must be
effective in achieving these. In Mthembu & Others v Claude Neon Lights (1992) 13 ILJ 422
(IC) the Court held that an employer is entitled to reward certain employees for out-
standing performance, whilst not rewarding others. This means that differentiation
based on merit is not unfair.
4.5.2 Provisions of Chapter 2

Chapter 2 of the EEA requires every employer to take steps to promote equal opportunities
in the workplace by eliminating unfair discrimination in employment policies and practices.
Section 6 prohibits unfair discrimination, directly or indirectly, in any employment pol-
icy or practice on one or more of the following grounds: race, gender, sex, pregnancy,
marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age,
disability, HIV status, religion, conscience, belief, political opinion, culture, language, birth
or on any other arbitrary ground (s 6(1)).
“Arbitrary ground” was added to section 6 in the 2013 amendments. In Ndudula & Others
v Metrorail-Prasa (Western Cape) [2017] 7 BLLR 706 (LC) the Labour Court examined the
meaning of “arbitrary ground” and decided that an “arbitrary ground” has not been intended
to create a new category of unfair discrimination, but that it simply refers to an unlisted
ground, i.e. a ground that has not been specifically listed in section 6 (e.g. race, age, disabil-
ity, etc.). Any discrimination, listed or not, that affects human dignity and that is not linked
to a rational goal constitutes unfair discrimination. Thus, if differentiation on an arbitrary
or unlisted ground affects human dignity it is unfair discrimination. Of importance is that
the employee who alleges discrimination on an arbitrary ground is required to identify that
arbitrary, unlisted ground and plead it in his case (in the CCMA or Labour Court). Also see
Minister of Correctional Services & Others v Duma (2017) 38 ILJ 2487 (LAC); Du Plessis v Rickjon
Mining & Engineering (2018) 39 ILJ 1665 (CCMA); Le Roux ‘The Employment Equity Act:
New Amendments Set Problems and Posers’ (2014) 24 Contemporary Labour Law 1.
Harassment on any one or a combination of the listed grounds is considered a form of
unfair discrimination (s 6(3)). So is a difference in terms and conditions of employment
between employees of the same employer performing the same or substantially the same
work or work of equal value if such differentiation is based, directly or indirectly, on one or
more of the grounds referred to (s 6(4)). The Minister by way of regulation prescribed the
criteria and methodology for assessing “work of equal value”. Employers are required to pay
special attention to wage differentials. Where such differentials are disproportionate or
unjustified, an employer has to implement progressive measures to address them in accord-
ance with the guidelines published by the Minister, any applicable sectoral determination
or by way of collective bargaining.
In terms of the regulations “work of equal value” is defined as work that is the same, sub-
stantially the same or of the same value as other work, as contemplated in regulation 4.
Regulation 4 stipulates that work performed by an employee is the same as the work of
another employee of the same employer if their work is identical or interchangeable. Or,
work is substantially the same if the work is sufficiently similar so that the two jobs can
reasonably be considered the same. Work is of the same value as the work of another
employee in a different job if the two occupations are accorded the same value.
In deciding whether work is of equal value, the relevant jobs must be objectively assessed,
taking into account criteria such as the responsibility demanded by the jobs; skills, qualifi-
cations experience and prior learning; physical, mental and emotional effort to perform
the work; and the conditions under which the work is performed (reg 6).
Differentiation in pay and other conditions of employment may be justified and will not
be considered unfair discrimination if the differentiation is fair and rational and is based
on one or a combination of (reg 7):
• seniority or length of service;
• qualifications, competence or potential that is above the acceptable levels for the job;
• performance or quality/quantity of work (subject to evaluation);
• demotion because of operational restructuring or for any other legitimate reason with-
out a reduction in pay and fixing an employee’s salary until the pay of other employee’s
reaches the same level;
• temporary employment in order to allow an employee to gain experience or receive
training;
• shortage of relevant skills or the market value of a particular job classification;
• any other factor that is not discriminatory.
Even before “equal pay for equal work” was specifically introduced into our law as a form of
discrimination the courts considered differential wages for equal work as unfair, unless
some justification existed. In Louw v Golden Arrow Bus Services (Pty) Ltd [2000] 3 BLLR 311
(LC) it was held that different wages for equal work would be unfair if the motive for paying
different wages is direct or indirect discrimination. In Mangena & Others v Fila South Africa
(Pty) Ltd & Others [2009] 12 BLLR 1224 (LC) the Labour Court observed that, in order to
succeed in a claim arising from wage differentials, the employee must identify the relevant
comparator and prove that the work is the same or of equal value and, further, that the
wage differential is based on a ground as listed in section 6(1) of the EEA.
In more recent judgments, decided after the EEA was amended to include the equal pay
issues, the Labour Court held, in Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR)
and Others [2016] 9 BLLR 942 (LC), that pay differentiation on the grounds of length of
service does not constitute unfair discrimination on an arbitrary ground. In Mzobe v Fencerite
(Pty) Ltd (2016) 37 ILJ 1767 (CCMA) the CCMA held that the assessment whether work was
“of the same, similar or of equal value” should be based on the considerations listed in
regulation 4 of the EEA, such as responsibility, skills and effort required to perform it. Also
see Govender v Umgungundlovo Municipality (2016) 37 ILJ 724 (CCMA).
Two forms of discrimination are not considered unfair and are consequently allowed:
affirmative action and differentiation based on the inherent requirements of a job (s 6(2)).
Testing of an employee for any medical condition is prohibited, unless legislation per-
mits or requires testing or where it is justifiable to do so in light of medical facts, employ-
ment conditions, social policy, the fair distribution of employee benefits or the inherent
requirements of a job. Testing for HIV/AIDS is prohibited, unless permitted by the Labour
Court.
Psychometric testing is likewise prohibited, unless the test being used has been scientif-
ically validated as one that provides reliable results, is appropriate for the intended pur-
pose, can be fairly applied to employees and is not biased against any employee or group.
Tests used for psychometric and similar assessments have to be certified by the Health
Professions Council of South Africa or any other body authorised by law to certify the tests
or assessments.
4.5.3 Dispute resolution (s 10)

Any dispute about alleged unfair discrimination, including harassment and “equal pay”
disputes, must be dealt with in terms of Chapter 2 of the EEA. Disputes about alleged unfair
dismissals are dealt with in terms of the LRA even if unfair discrimination is alleged in the
context of the dismissal.
A dispute concerning alleged unfair discrimination must be referred to the CCMA (not a
bargaining council) within six months for conciliation. A copy of the referral must be
served on every other party to the dispute and the referring party must satisfy the CCMA
that he has made a reasonable attempt to resolve the dispute. A late referral may be con-
doned.
The CCMA must attempt to resolve the dispute through conciliation. If the dispute re-
mains unresolved after conciliation, any party to the dispute may refer it to the Labour
Court for adjudication (or the parties may consent in writing to arbitration by the CCMA.)
Since the 2013 amendments to the EEA took effect on 1 August 2014 arbitration of discrim-
ination disputes by the CCMA is possible under certain circumstances. Instead of approach-
ing the Labour Court any employee alleging sexual harassment can refer the dispute to the
CCMA for arbitration. In all other cases of alleged unfair discrimination the dispute can be
referred to the CCMA instead of to the Labour Court if the employee earns less than the
BCEA threshold (currently R205 433-30). A CCMA award is appealable to the Labour Court
within 14 days from the date of the award.
Sexual harassment disputes:
Adjudication Arbitration
Refer to Labour Court OR Refer to CCMA
Dispute unresolved
Conciliation
CCMA (not council)
ANY employee can refer sexual harassment

dispute within 6 months
All other discrimination disputes:
Adjudication Arbitration
Refer to Labour Court Refer to CCMA
Dispute unresolved Dispute unresolved
Conciliation Conciliation
CCMA (not council) CCMA (not council)
ALL employees can refer OR Employees earning below

dispute within 6 months BCEA threshold can refer
dispute within 6 months
Where unfair discrimination is alleged on a ground listed in section 6(1) the onus is on the
employer to prove that discrimination did not take place as alleged or that it was rational,
justifiable and not unfair. If unfair discrimination is alleged on an arbitrary ground the
employee must prove that the conduct complained of is not rational, amounts to discrimin-
ation and is unfair.
4.6 Chapter 3 – Affirmative action
4.6.1 Affirmative action measures

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

In terms of section 13 a designated employer must:
• consult with its employees;
• conduct a staff analysis or staff audit;
• prepare and implement an employment equity plan; and
• report to the Director-General on progress made in implementing the plan.
• The employer must consult and attempt to

reach consensus on the conduct of the staff
analysis, preparation and implementation of
the equity plan and the report to be submit-
ted to the Director General.
CONSULT
(ss 16–18) • The employer must consult with trade unions,
workplace forums and representatives of non-
union employees.
• The employer has to disclose relevant infor-
mation that will allow effective consultation.
• The employer must conduct an analysis of its

employment practices, policies and pro-
cedures and identify employment barriers.
ANALYSIS
(s 19) • The analysis must include a profile of the
workforce within each occupational level and
under-representation must be identified.
• The employer must prepare and implement
an equity plan, which must include the fol-
lowing:
– the objectives to be achieved for each
year of the plan;
– the affirmative action measures to be
implemented;
– the numerical goals to achieve the equit-
able representation of suitably qualified
people from designated groups within
each occupational level, the timetable
within which this is to be achieved and
the strategies intended to achieve those
goals;
EQUITY PLAN – the timetable for each year of the plan
(s 20) for the achievement of objectives other
than numerical goals;
– the duration of the plan (not shorter than
one year and not longer than five years);
– the procedures for monitoring and evalu-
ating the plan and whether reasonable
progress is being made;
– the internal dispute resolution procedures
to resolve disputes about the interpret-
ation or implementation of the plan;
– the persons, including senior managers,
responsible for monitoring and imple-
menting the plan.
• The plan must be displayed at the workplace
and made available to employees.
continued
• Designated employers must submit a report

to the Director General once every year on
the first working day of October or on such
other date as prescribed.
• Employers who become designated employ-
ers on or after the first working day of April
in any year must submit its first report on the
first working day of October the following
year.
• An employer who is unable to submit the
report timeously must notify the DG, with
reasons, of such inability before the end of
August of that year.
REPORT TO • The report has to refer to progress made in
DG the implementation of affirmative action and
(ss 21 & 22) must include information on the remuner-
ation and benefits received in each occupa-
tional level*.
• The report is a public document.
• A public company must publish the report in
its annual financial report.
• A report in respect of an organ of state is to
be tabled in Parliament.
• The DG may apply to the Labour Court to
have a fine imposed on the employer for fail-
ing to submit a report, failing to notify the
DG of its inability to submit a report on time
or providing false reasons for not submitting
a report.
* Where disproportionate income differentials are reflected, the employer must take measures
to progressively reduce such differentials. These measures may include collective bargaining,
compliance with sectoral determinations, applying the norms and benchmarks set by the
Employment Conditions Commission, relevant measures contained in skills development legis-
lation and/or other measures that are appropriate in the circumstances (s 27). This infor-
mation may also be requested by trade unions for collective bargaining purposes (subject to
s 16 of the LRA).
4.7 Commission for Employment Equity (Ch 4)

The Commission for Employment Equity (CEE) is established in terms of Chapter 4 of the
Act.
The CEE consists of a chairperson and eight other members appointed by the Minister
to hold office on a part-time basis. The members are nominated by the respective stake-
holders in NEDLAC (s 29).
The CEE is, in the main, an advisory body. It advises the Minister on codes of good prac-
tice, regulations that can or should be made and policy and other matters concerning the
EEA. The CEE may research and report to the Minister on any matter relating to the Act
and award employers for their achievements in furthering the purposes of the Act. The
CEE is required to submit an annual report to the Minister. In performing its functions the
CEE may call for written or oral representations from members of the public (s 32).
4.8 Monitoring, enforcement and legal proceedings (Ch 5)

In terms of Chapter 5 of the Act employees, trade unions, labour inspectors, the Director
General and the Labour Court play a role in monitoring compliance with the EEA. Any
employee or trade union representative may bring an alleged contravention of the Act to
the attention of another employee, an employer, a trade union, a workplace forum, a
labour inspector, the Director General or the CEE.
4.8.1 Labour inspectors (ss 35–40)

Inspectors have wide powers to ensure compliance with the EEA. These powers include the
right to:
• enter any workplace, question any person and inspect documents, books and the like in
an attempt to establish whether the employer is complying with the provisions of the Act;
• request a written undertaking from an employer to comply with certain matters; and
• issue compliance orders.
A labour inspector may obtain a written undertaking from a designated employer to comply
with the provisions of the Act if reasonable grounds exist to believe that the employer has
failed to consult with employees, conduct an analysis, publish an employment equity report,
assign responsibility to one or more senior managers or inform its employees or to keep
records (s 36).
A labour inspector may issue a compliance order to a designated employer if the latter
has failed to consult with employees, conduct an analysis, publish an employment equity
report, assign responsibility to one or more senior managers or inform its employees or to
keep records. A compliance order must set out the name of the employer and the work-
places to which the order applies, the provisions of the Act which have not been complied
with, details of the conduct constituting non-compliance, any written undertaking given by
the employer and its failure to comply with it, steps the employer is required to take within
a specified time to comply and the maximum fine that may be imposed for non-compliance
(s 37).
A copy of the compliance order must be served on the employer, who must display it at
the workplace to which it applies. The employer must comply with the order within the
specified time. Where an employer fails to comply with the order the Director General may
apply to the Labour Court to have the compliance order made an order of the Labour
Court.
A labour inspector may not issue a compliance order if the employer is under review by
the Director General or if the Director General has referred an employer’s failure to com-
ply to the Labour Court.
4.8.2 The Director General (ss 41–43)

The functions of the Director General fall broadly into two categories, namely to assess
compliance with the EEA and to conduct reviews to determine compliance.
• Assessment of compliance: The Director General may determine whether a designated
employer has made reasonable efforts to implement an equity plan, assess the progress of
the plan, appraise the elimination of barriers which adversely affect people from desig-
nated groups and assess the employer’s compliance with affirmative action measures. In
this regard the Director General may take into account the extent to which suitably qual-
ified people from the designated groups are equitably represented within each occu-
pational level in the workplace; the demographic profile of the national and regional
economically active population; reasonable steps taken to train suitable qualified people
from the designated groups; reasonable steps taken to implement its employment equity
plan; the progress made in eliminating employment barriers and reasonable steps taken
by employer to promote suitably qualified people from the designated groups.
• Review: The Director General may conduct a review to determine whether an employer is
complying with the Act. In this regard the Director General may request an employer to
submit a copy of its analysis, equity plan or any other relevant document; request a meet-
ing with an employer in order to discuss its employment equity plan; request a meeting
with any employee, trade union, workplace forum or any other person who may have
relevant information; approve, subsequent to a review, an employer’s equity plan or
make written recommendations to an employer regarding the equity plan and com-
pliance with the Act. If the employer fails to comply with a request or recommendation
the Director General may apply to the Labour Court for an order directing the employer
to comply or, if the employer fails to justify non-compliance, to impose a fine.
If the employer notifies the Director General that it does not accept the request or recom-
mendation, the Director General must institute proceedings in the Labour Court. If pro-
ceedings are not instituted within the prescribed period (90 days in the case of a request
and 180 days in the case of a recommendation) the request or recommendation lapses
(s 45(2)).
4.8.3 The Labour Court (ss 49–50)

The Labour Court has exclusive jurisdiction to determine any dispute about the interpret-
ation or application of the Act, except where the Act provides otherwise.
The Labour Court has wide powers to determine disputes under the EEA. The Court
may, inter alia, award compensation or damages, impose a fine for contravention of certain
provisions of the Act, make a compliance order an order of court, order compliance with
the Act, direct the CCMA to conduct an investigation, entertain an appeal submitted by an
employer against an order of the Director-General and review any administrative action
provided for in the Act (s 50(1)).
If the Labour Court finds that an employer has unfairly discriminated against an em-
ployee, it may make any appropriate order that is just and equitable in the circumstances,
including payment of compensation or damages by the employer to the employee. The
Court may direct the employer to take steps to prevent the same unfair discrimination or a
similar practice from occurring in respect of other employees. It may also direct an em-
ployer (other than a designated employer) to comply with Chapter 3 as if it were a desig-
nated employer (s 50(2)).
If the Court finds the medical testing of an employee justifiable, any appropriate order
may be made and the Court may impose conditions relating to the provision of counselling,
the maintenance of confidentiality, the period during which the authorisation for any test-
ing applies and the category or categories of jobs or employees in respect of which the
authorisation for testing applies.
If a dispute has been referred to the CCMA and the issue to which the dispute relates
also forms the subject of a referral to the Labour Court by the Director General, the CCMA
proceedings must be stayed until the Labour Court determines the Director General’s
referral. If a dispute has been referred to the CCMA against an employer who is being
reviewed by the Director General, the dispute may not be conciliated or adjudicated until
the review has been completed and the employer has been informed of the outcome (s 46).
4.9 Protection of employee rights (ss 51–52)

Part C of Chapter 5 of the EEA deals with employee rights. No person may discriminate
against an employee who exercises any right conferred by the Act (s 51). For the purposes
of this section “employee” includes a former employee or an applicant for employment.
No person may, for example, prevent an employee from exercising any right or from
participating in any proceedings, prejudice an employee for exercising any right or partici-
pating in any proceedings, prejudice an employee for past, present or anticipated disclosure
of information that he or she is lawfully entitled or required to disclose or favour or prom-

ise to favour an employee in exchange for not exercising any right or not participating in
any proceedings.
A dispute about the interpretation or application of Part C may be referred to the CCMA
(not a bargaining council) for conciliation and, if unresolved, to the Labour Court for adju-
dication. If all the parties to the dispute agree, the CCMA may arbitrate the dispute (s 52).
4.10 General provisions

Confidential information: Disclosure of confidential information obtained during the perform-
ance of any function in terms of the Act constitutes a criminal offence, unless such disclo-
sure is required by law or in terms of a court order and may invite a fine of up to R30 000
(s 59).
Codes of good practice: The Minister may issue any Code of Good Practice and publish it in
the Government Gazette. The codes of good practice are intended to provide employers with
information that may assist them in the implementation of the Act.
Incentives: Every employer who makes an offer to conclude an agreement with any organ
of state to supply services or goods must, if it is a designated employer, comply with Chap-
ters II and III of the Act or, if it is not a designated employer, comply with Chapter II. In
addition, the prospective contractor must attach to its offer a certificate or declaration of
compliance. The certificate of compliance is issued by the Minister to confirm that the em-
ployer has complied with Chapters II and/or III. A declaration of compliance is made by an
employer and verified by the Director-General to confirm that he has complied with the
relevant provisions. The certificate is valid for 12 months or until the next date on which
the employer has to submit its annual equity report, whichever period is the longer. Failure
to comply with the relevant provisions of the Act is sufficient ground for a rejection of any
offer to conclude an agreement or for cancellation of an agreement (s 53).
Sanctions: Schedule 1 sets out the maximum fines that may be imposed for the contraven-
tion of certain provisions of the Act.
Questions
Question 1
Many employment contracts provide for a retirement age of 65 for males and 60 for fe-
males. Discuss the implications of such provisions in light of section 9 of the Constitution,
section 6 of the EEA and section 187 of the LRA. (10)
Question 2
Some employers have separate medical aid funds and group life assurance schemes for its
white and black employees. The economic rationale of this is that the illness and life expec-
tancy profiles of the two groups differ significantly and as such have a differential impact on
the costs of maintaining these benefits. Could this practice be open to attack on the
grounds that it is unfair discrimination? (15)
Hint: See Leonard Dingler Employee Representative Council & Others v Leonard Dingler (Pty) Ltd &
Others [1997] 11 BLLR 1438 (LC).
Question 3
Assume that the Department of Correctional Services has a minimum job specification that
all prison guards should be at least 1,7 metres tall. Assume further that national statistics
from the Department of Central Statistical Services show that such a requirement excludes
33,3% of women compared to 1,3% of men. An application by a female for a job at a high
security prison for the criminally insane is rejected on the grounds that she does not meet
the minimum height requirement. Discuss whether the Correctional Services regulation
amounts to unfair discrimination. (10)
Hint: Discuss indirect discrimination and the difference between providing a rational basis
for discrimination and adducing empirical proof of the relationship between a job specifi-
cation and the inherent requirements of a particular job.
Question 4
John, a homosexual employee working for XYZ Company, wishes to challenge his employer’s
refusal to have the rules of its medical aid fund amended to allow the admission of John’s
life partner as a dependant to the fund. Give your comments on the chances of John suc-
ceeding in his claim based on unfair discrimination. (10)
Hint: See Langemaat v Minister of Safety and Security & Others 1998 (4) BCLR 444 (T).
Question 5
Andy wishes to join a newly established private airline company, Highrise Airlines (Pty) Ltd,
as a cabin crew member. His application is turned down because Highrise Airlines caters
for a niche market of young executives (predominantly male) whom they contend prefer to
be served their on-board drinks and snacks by scantily clad female stewardesses. Hence, so
their argument goes, their policy of employing only females as cabin attendants is a busi-
ness necessity. Discuss Andy’s prospects of being successful in claiming unfair discrimin-
ation and the airline’s defence. (10)
Question 6
Mary applied for a job with a small advertising agency. She was by far the best-qualified
applicant for the job, but she was also eight months pregnant (and very obviously so) when
she presented herself for the selection interview. Her application was unsuccessful and she
referred a dispute about her non-appointment to the CCMA for conciliation and then to
the Labour Court for adjudication. Will she succeed in claiming unfair discrimination? (10)
Hint: See Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC); Woolworths (Pty) Ltd v
Beverley Whitehead [2000] 6 BLLR 640 (LAC); Wallace v Du Toit (2006) 27 ILJ 1754 (LC).
Question 7
A forty-year old male applies for a position as chief engineer with a large construction
company. The job specifications state that a job applicant should at least hold a degree in
civil engineering, be registered as a professional engineer and have 10 years’ appropriate
experience, four in a managerial capacity. The applicant has a national diploma in civil
engineering from a university of technology and has 10 years’ experience as a site engineer.
Assume that, in recognition of his prior learning and experience, he can obtain a degree in
civil engineering within one year and register as a professional engineer one year later.
7.1 Assume that this applicant is not appointed. Write a brief in support of his appli-
cation to the Labour Court, challenging the employer’s failure to appoint him by ref-
erence to appropriate provisions of the EEA. (10)
7.2 Assume that the applicant is a coloured man and he is appointed. Assume further
that one of the company’s white male employees, an assistant chief engineer with
10 years’ experience, also applied for the position which, had he been successful,
would have been a promotion for him. The unsuccessful white male applicant
approaches you to challenge the appointment of the external applicant on the basis
that it amounts to unfair discrimination or, alternatively, that it constitutes an unfair
labour practice. Evaluate both bases of your client’s claim and describe the applicable
procedures to be followed in each case. (20)
Hint: See George v Liberty Life Association of Africa Ltd [1996] 8 BLLR 985 (IC).
Question 8
A company advertises the position of an administrative department head. The advertise-
ment requires a candidate to be in possession of a code 8 driver’s licence in order to be
considered. In terms of the company’s employment policies preference must be given to
internal applicants. Two female employees of the company, one white and one black, apply
for the position. Both are able to do the job in question. The black applicant is invited to an
interview and is appointed despite the fact that she does not have a driver’s licence. The
white woman, who has a driver’s licence, claims that the failure to appoint her is unfair.
Advise her on the validity of her claim. (10)
Hint: See NUTESA v Technikon Northern Transvaal [1997] 4 BLLR 467 (CCMA).
Question 9
In comparison with other job applicants Thabo is clearly the best qualified and experienced
person for the job. He is not appointed because of his obesity. The recruitment officer
informs him that the company does not have place for a 300 kg freak. Thabo’s obesity does
not have any known medical cause; he is simply very fat.
9.1 Can Thabo challenge his non-appointment on the basis of unfair discrimination
against obese people? If so, how will a claim of unfair discrimination based on obesity
rather than on race or gender influence legal proceedings? (5)
9.2 Assume that Thabo applied for a position as a flight attendant with SA Airlink. He
was not appointed because the employer argued that it was an inherent requirement
of the job that flight attendants are small and thin in order to fit into the small cabin
of the aeroplanes. Will Thabo succeed in his claim of unfair discrimination? (5)
Question 10
Tom applied to SAA for employment as a cabin attendant. He went through a four-stage
selection process and was found, together with eleven other applicants, to be a suitable
candidate for employment. This decision was subject to a pre-employment medical examin-
ation which included a blood test for HIV/AIDS. He was found to be clinically fit. However,
his blood test showed that he was HIV-positive. He was, therefore, regarded as unsuitable
for employment as a cabin attendant and was not employed. Explain whether Tom’s non-
appointment amounts to discrimination. (10)
Hint: See Hoffmann v SA Airways (2000) 21 ILJ 2357 (CC); Joy Mining Machinery (A division of
Harnischfeger (SA) (Pty) Ltd) v NUMSA & Others (2002) 11 LC 6.12.1; Allpass v Mooikloof Estates
(Pty) Ltd t/a Mooikloof Equestrian Centre (2011) 32 ILJ 1637 (LC).
Question 11
Rooster Chickens is a franchise business with numerous fast food outlets around the country.
In terms of the franchise agreement every franchise holder is required to own at least three
outlets. Mr Khumalo owns three outlets in the Durban area and employs some 15 employ-
ees at each outlet. The annual turnover of each of the three outlets ranges between R2m and
R3m every year. (The prescribed minimum turnover for this type of business is R2m p.a.)
11.1 Briefly explain whether the outlets owned by Mr Khumalo are “designated em-
ployers”. (2)
11.2 Assume that the outlets are designated employers. Name and briefly explain the duties
of a designated employer as regards the implementation of affirmative action. (8)
11.3 Mr Khumalo decides to renovate the outlet in Umlazi. The building is painted in the
colours of the South African flag, the flag serves as the logo of the business and a new
slogan is adopted: “Chicken for the rainbow nation”. He advertises for a manager of
the revamped outlet. Several candidates apply and eventually Ms Zuma is appointed.
She has no experience as manager of a food outlet (or of any other business whatso-
ever) and she has a diploma in medical technology. When they hear about Ms Zuma’s
appointment, Ms Van der Merwe and Mr Naidoo, who both applied for the position,
claim that they have been unfairly discriminated against. Ms Van der Merwe has a
diploma in marketing and 12 years’ experience as a manager at various outlets of
Kentucky Fried Chicken. Mr Naidoo has a BComm degree and has managerial experi-
ence in a large company and in the head office of Spur Steak Ranches, totalling seven
years. When Mr Naidoo and Ms Van der Merwe raise the issue of unfair discrimin-
ation, Mr Khumalo claims that he had to appoint a Zulu-speaking person because his
customers at the Umlazi outlet are predominantly Zulu people.
(a) Did Mr Khumalo unfairly discriminate against Ms Van der Merwe and
Mr Naidoo? Explain. (5)
(b) Is Mr Khumalo’s claim that he had to appoint a Zulu speaking person valid?
Briefly explain. (2)
(c) Do Mr Naidoo and Ms Van der Merwe as job applicants have access to the
dispute resolution mechanisms established under the EEA? (2)
(d) Assume that they do have such access. Explain the procedures they must
follow to have their dispute resolved. (5)
Question 12
Ms Van der Merwe, a white female, was appointed on a fixed-term contract at Coega Water
Board. The fixed-term contract was initially for two months, but was then renewed, again for
two months and thereafter for another eight months. Ms Van der Merwe was an exception-
ally good worker and developed a programme for water purification that saved the Water
Board many thousands of rands. Towards the end of her fixed-term contract the Water
Board decided to make her position a permanent one and advertised it as such. Ms Van der
Merwe unsuccessfully applied for the position. A black female employee, working for the
Water Board in another department, was appointed to the position. Ms Van der Merwe
claimed that she had been discriminated against.
Discuss the validity or otherwise of her claim. Include in your answer the dispute resolu-
tion procedure that she can follow to have her dispute resolved. (10)
Hint: Biggs v Rand Water (2003) 24 ILJ 1957 (LC).
Question 13
Mr B Marley is employed by the Department of Correctional Services. He is a Rastafarian
and wears his long hair in dreadlocks. The Department has a strict dress code and expects
all employees to adhere to this code. In terms of the dress code male employees must wear
their hair “short back and sides” and female employees must tie up their hair. Mr Marley
has been instructed on numerous occasions to cut his hair, but he refuses to do so. He
maintains that his religion requires this type of hairstyle. The Department disagrees with
him and insists that he cut his hair as other Rastafarians have done. If he continues to
refuse, he will face dismissal. Mr Marley argues that the Department is discriminating
against him because of his religion and maintains that he will not cut his hair because his
hairstyle is part of him and it will infringe his dignity if he were to spoil his appearance.
13.1 Consider both the employer’s and Mr Marley’s arguments and explain whether the
employer is unfairly discriminating against Mr Marley. (10)
13.2 Mr Marley is convinced that the Department is discriminating against him and wishes to
have the dispute resolved. Explain the dispute resolution procedures that he will have
to follow to have the dispute resolved. Include any prescribed time frames that may
be applicable. Keep in mind that the majority of disputes arising in the Department
have to be referred to the General Public Service Sectoral Bargaining Council. (7)
13.3 Assume that Mr Marley was dismissed because of his refusal to cut his hair. He main-
tains his claim of unfair discrimination. How will the dispute resolution procedures in
this case differ from your answer in 13.2 ? Explain. (5)
Hint: See Department of Correctional Services & Another v Police & Prisons Civil Rights Union &
Others (2011) 32 ILJ 2629 (LAC).
Question 14
Three highly qualified white inspectors at the Explosives Unit of the SAPS approach you for
advice. The SAPS Employment Equity Plan classified them as members of a non-designated
group. The inspectors applied for vacant positions reserved for people from designated
groups. Although there were no applications from anyone from the designated groups, the
inspectors were still refused promotions. The SAPS contends that their non-appointment
was not unfair because it took place according to the affirmative-action plan as contained in
the employment plan of the SAPS. The inspectors, however, are of the opinion that their
non-appointment amounted to unfair discrimination. Advise your clients by referring to
applicable provisions and case law. (6)
Hint: See Coetzer & Others v Minister of Safety and Security & Another (2003) 24 ILJ 163 (LC);
Solidarity obo Barnard v SA Police Service (2010) 31 ILJ 742 (LC); SAPS v Solidarity obo Barnard
[2014] ZACC 23 (CC).
Question 15
Study the advertisement below and then answer the question that follows.
MARABA PANELBEATERS – MATHIBENG

Vacancies : One panel beater
Duties : Repair of vehicles
The successful candidate must:
(a) be a member of the Christian faith
(b) be a qualified panel beater
(c) not be older than 25 years
(d) be fluent in Afrikaans
(e) not be blacklisted because of debt.
Closing date for applications: 8 April 2015
Send a complete CV to:
The Manager
Maraba Panel beaters
PO Box 204
MATIBENG
Ruska Radiv approaches you for advice. He claims that he is being unfairly discriminated
against because he is a Muslim, 32 years old, in his final year as apprentice, fluent in English
only and on the blacklist because of debt.
Advise Ruska on the possibility that he is being unfairly discriminated against. (10)
Question 16
Three Muslim butchers were employed by Saski Butchery because of their “religiosity”: they
were all Muslims who slaughtered chickens according to the halal standards required by the
Muslim Judicial Council. All three declined to work on the Muslim religious holiday Eid ul
Fitr. The collective agreement between the company and the union entitled workers to
gazetted public holidays only; Eid was not such a holiday. Alternative arrangements were
not acceptable to the employer because the rest of the workforce would be affected. After
the three butchers failed to work on Eid, they were found guilty of refusing to work and
consequently dismissed. Did the employer unfairly discriminate against them? (4)
Hint: See Food & Allied Workers Union & Others v Rainbow Chicken Farmers (2000) 21 ILJ 615
(LC).
Question 17
After a successful interview John was offered employment with Easy PC as an information
technology technician. He accepted the position in writing and thereafter advised Easy PC
that he was in the process of undergoing gender reassignment from male to female. Easy
PC regarded his failure to divulge this information at his interview as a serious case of
misrepresentation amounting to dishonesty. In the company’s view his actions amounted to
a repudiation of his contract of employment, which repudiation it accepted and conse-
quently terminated his employment. Do the actions of Easy PC amount to unfair discrimin-
ation? (5)
Hint: See Atkins v Datacentrix (Pty) Ltd (2010) 31 ILJ 1130 (LC).
Question 18
Sandra and her husband worked for a small security company which was run by its owner,
Mr Dandy Man. Sandra resigned and claimed constructive dismissal because, according to
her, Mr Dandy Man had sexually harassed her. His constant harassment had made her work-
ing life intolerable. He continually tried to kiss her and had sent her electronic messages of
a sexual nature. During the subsequent CCMA arbitration of her constructive dismissal dis-
pute the following evidence was led. Sandra voluntarily and regularly worked overtime to
assist Mr Dandy Man. The two often went on business trips together, sent each other as
many as 100 SMSs per week and jogged together almost daily. Mr Dandy Man’s wife at some
stage confronted Sandra and accused her of having an affair with her husband. Sandra
denied the accusation. She then started receiving abusive and sexual e-mails and Facebook
messages which threatened to reveal the “affair” to her husband. She was convinced that
Mr Dandy Man was responsible for these messages and, because she had told him on
numerous occasions to stop his attentions towards her, without success, she resigned.
Mr Dandy Man denied the allegations of sexual harassment because, according to him, they
had had a consensual affair. The affair came to an end when Sandra gave birth to a baby
boy. Subsequent paternity tests showed that her husband was the father of the child. Sandra
vehemently denied the affair, but added that she had had the paternity tests done “to be
certain”.
Decide, on the evidence, whether Sandra’s claim of sexual harassment has any substance.
In determining the issue, have regard to the Code of Good Practice on the Handling of
Sexual Harassment Cases. (10)
Appendix 1
Sector or sub-sectors in accordance with the Total annual

Standard Industrial Classification turnover
Agriculture R6 m
Mining and Quarrying R22,5 m
Manufacturing R30 m
Electricity, Gas and Water R30 m
Construction R15 m
Retail and Motor Trade and Repair Services R45 m
Wholesale Trade, Commercial Agents and Allied Services R75 m
Catering, Accommodation and other Trade R15 m
Transport, Storage and Communications R30 m
Finance and Business Services R30m
Community, Social and Personal Services R15 m
Appendix 2
AMENDED CODE OF GOOD PRACTICE ON THE HANDLING OF

SEXUAL HARASSMENT CASES IN THE WORKPLACE2
1. Introduction
1.1 The objective of this code is to eliminate sexual harassment in the workplace.
1.2 This code provides appropriate procedures to deal with sexual harassment and prevent its
recurrence.
1.3 This code encourages and promotes the development and implementation of policies and
procedures that will lead to the creation of workplaces that are free of sexual harassment,
where employers and employees respect one another’s integrity and dignity, their privacy,
and their right to equity in the workplace.
2. Application of the code

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

Sexual harassment in the working environment is a form of unfair discrimination and is prohib-
ited on the grounds of sex and/or gender and/or sexual orientation.
4. Test for Sexual Harassment

Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an
employee and constitutes a barrier to equity in the workplace, taking into account all of the
following factors:
4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual
orientation;
4.2 whether the sexual conduct was unwelcome;
________________________
2 GN 1357 in GG 27865 of 4 August 2005, replacing the original Code.

4.3 the nature and extent of the sexual conduct; and

4.4 the impact of the sexual conduct on the employee.
5. Factors to establish sexual harassment

5.1 Harassment on a prohibited ground
5.1.1 The grounds of discrimination to establish sexual harassment are sex, gender and
sexual orientation.
5.1.2 Same-sex harassment can amount to discrimination on the basis of sex, gender and
sexual orientation.
5.2 Unwelcome conduct
5.2.1 There are different ways in which an employee may indicate that sexual conduct is
unwelcome, including non-verbal conduct such as walking away or not responding
to the perpetrator.
5.2.2 Previous consensual participation in sexual conduct does not necessarily mean that
the conduct continues to be welcome.
5.2.3 Where a complainant has difficulty indicating to the perpetrator that the conduct is
unwelcome, such complainant may seek the assistance and intervention of another
person such as a co-worker, superior, counsellor, human resource official, family
member or friend.
5.3 Nature and extent of the conduct
5.3.1 The unwelcome conduct must be of a sexual nature, and includes physical, verbal
or non-verbal conduct.
5.3.1.1 Physical conduct of a sexual nature includes all unwelcome physical con-
tact, ranging from touching to sexual assault and rape, as well as strip
search by or in the presence of the opposite sex.
5.3.1.2 Verbal conduct includes unwelcome innuendoes, suggestions, hints, sexual
advances, comments with sexual overtones, sex-related jokes or insults,
graphic comments about a person’s body made in their presence or to
them, inappropriate enquiries about a person’s sex life, whistling of a sex-
ual nature and the sending by electronic means or otherwise of sexually
explicit text.
5.3.1.3 Non-verbal conduct includes unwelcome gestures, indecent exposure and
the display or sending by electronic means or otherwise of sexually explicit
pictures or objects.
5.3.2 Sexual harassment may include, but is not limited to, victimisation, quid pro quo har-
assment and sexual favouritism.
5.3.2.1 Victimisation occurs where an employee is victimised or intimidated for
failing to submit to sexual advances.
5.2.3.2 Quid pro quo harassment occurs where a person such as an owner, employer,
supervisor, member of management or co-employee, influences or attempts
to influence an employee’s employment circumstances (for example en-
gagement, promotion, training, discipline, dismissal, salary increments or
other benefits) by coercing or attempting to coerce an employee to sur-
render to sexual advances. This could include sexual favouritism, which
occurs where a person in authority in the workplace rewards only those
who respond to his or her sexual advances.
5.3.3 A single incident of unwelcome sexual conduct may constitute sexual harassment.
5.4 Impact of the conduct
The conduct should constitute an impairment of the employee’s dignity, taking into account:
5.4.1 the circumstances of the employee; and
5.4.2 the respective positions of the employee and the perpetrator in the workplace.
6. Guiding principles
Employers should create and maintain a working environment in which the dignity of employees
is respected. A climate in the workplace should also be created and maintained in which com-
plainants of sexual harassment will not feel that their grievances are ignored or trivialised, or
fear reprisals. Implementing the following guidelines can assist in achieving these ends:
6.1 Employers/management and employees are required to refrain from committing acts of
sexual harassment.
6.2 All employers/management and employees have a role to play in contributing towards cre-
ating and maintaining a working environment in which sexual harassment is unacceptable.
They should ensure that their standards of conduct do not cause offence and they should
discourage unacceptable behaviour on the part of others.
6.3 Employers/management should attempt to ensure that persons such as customers, suppliers,
job applicants and others who have dealings with the business are not subjected to sexual
harassment by the employer or its employees.
6.4 Employers/management should take appropriate action in accordance with this code where
instances of sexual harassment occur in the working environment.
7. Sexual Harassment Policies

7.1 Employers should, subject to any existing collective agreements and applicable statutory
provisions in respect of sexual harassment, adopt a sexual harassment policy, which should
take cognisance of and be guided by the provisions of this code.
7.2 The contents of sexual harassment policies should be communicated effectively to all em-
ployees.
7.3 The adoption of a sexual harassment policy and the communication of the contents of the
policy to employees, should, amongst other factors, be taken into consideration in determin-
ing whether the employer has discharged its obligations in accordance with the provisions
of section 60 (2) of the Employment Equity Act (EEA).
7.4 Sexual harassment policies should substantially comply with the provisions of this code and
include at least the following statements:
7.4.1 Sexual harassment is a form of unfair discrimination on the basis of sex and/or gen-
der and/or sexual orientation which infringes the rights of the complainant and
constitutes a barrier to equity in the workplace.
7.4.2 Sexual harassment in the workplace will not be permitted or condoned.
7.4.3 Complainants in sexual harassment matters have the right to follow the procedures
in the policy and appropriate action must be taken by the employer.
7.4.4 It will be a disciplinary offence to victimise or retaliate against an employee who in
good faith lodges a grievance of sexual harassment.
7.5 The procedures to be followed by a complainant of sexual harassment and by an employer
when sexual harassment has occurred, should be outlined in the policy.
8. Procedures
Employers should develop clear procedures to deal with sexual harassment. These procedures
should enable the resolution of problems in a sensitive, efficient and effective way.
8.1 Reporting sexual harassment
8.1.1 Section 60(1) of the EEA provides that conduct in contravention of the EEA must
immediately be brought to the attention of the employer.
8.1.2 In instances of sexual harassment, the word “immediately” shall mean as soon as is
reasonably possible in the circumstances and without undue delay, taking into
account the nature of sexual harassment, including that it is a sensitive issue, that
the complainant may fear reprisals and the relative positions of the complainant
and the alleged perpetrator in the workplace.
8.1.2 Sexual harassment may be brought to the attention of the employer by the com-
plainant or any other person aware of the sexual harassment, for example a friend,
colleague or human resources official acting on the request of the complainant,

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

8.6.1 A complainant of sexual harassment may choose to follow either of the following
informal procedures:
8.6.1.1 the complainant or another appropriate person explains to the perpetra-
tor that the conduct in question is not welcome, that it offends the com-
plainant, makes him or her feel uncomfortable and that it interferes with
his or her work; or
8.6.1.2 an appropriate person approaches the perpetrator, without revealing the
identity of the complainant, and explains to the perpetrator that certain
forms of conduct constitute sexual harassment, are offensive and unwel-
come, make employees feel uncomfortable, and interfere with their work.
8.6.2 An employer should consider any further steps, which can be taken to assist in deal-
ing with the complaint.
8.7 Formal procedure
8.7.1 A complainant may choose to follow a formal procedure, either with or without first
following an informal procedure.
8.7.2 In the event that a complainant chooses not to follow a formal procedure, the em-
ployer should still assess the risk to other persons in the workplace where formal
steps have not been taken against the perpetrator. In assessing such risk the em-
ployer must take into account all relevant factors, including the severity of the sexual
harassment and whether the perpetrator has a history of sexual harassment. If it
appears to the employer after a proper investigation that there is a significant risk
of harm to other persons in the workplace, the employer may follow a formal pro-
cedure, irrespective of the wishes of the complainant, and advise the complainant
accordingly.
8.7.3 The employer’s sexual harassment policy and/or collective agreement should out-
line the following in respect of a formal procedure:
8.7.3.1 with whom the employee should lodge a grievance;
8.7.3.2 the internal grievance procedures to be followed, including provision for
the complainant’s desired outcome of the procedures;
8.7.3.3 time frames which will allow the grievance to be dealt with expeditiously;
8.7.3.4 that should the matter not be satisfactorily resolved by the internal pro-
cedures outlined above, a complainant of sexual harassment may refer the
dispute to the Commission for Conciliation Mediation and Arbitration
(CCMA). Similarly an alleged perpetrator of sexual harassment may refer a
dispute arising from disciplinary action taken by the employer to the
CCMA; and
8.7.3.5 that it will be a disciplinary offence to victimise or retaliate against a com-
plainant who in good faith lodges a grievance of sexual harassment.
8.8 Disciplinary sanctions
The employer’s sexual harassment policy should specify the range of disciplinary sanctions
that may be imposed on a perpetrator. The sanctions must be proportionate to the serious-
ness of the sexual harassment in question, and should provide that:
8.8.1 warnings may be issued for minor instances of sexual harassment;
8.8.2 dismissal may ensue for continued minor instances of sexual harassment after warn-
ings, as well as for serious instances of sexual harassment;
8.8.3 in appropriate circumstances upon being found guilty of sexual harassment, a per-
petrator may be transferred to another position in the workplace.
9. Confidentiality
9.1 Employers and employees must ensure that grievances about sexual harassment are investi-
gated and handled in a manner that ensures that the identities of the persons involved are
kept confidential.
9.2 In cases of sexual harassment, management, employees and the parties concerned must
endeavour to ensure confidentiality in the disciplinary inquiry. Only appropriate members
of management as well as the aggrieved person, representatives, alleged perpetrator, wit-
nesses and interpreter if required should be present in the disciplinary inquiry.
9.3 Employers are required to disclose to the complainant, the perpetrator and/or their
representatives, such information as may be reasonably necessary to enable the parties to
prepare for any proceedings in terms of this code.
10. Additional sick leave

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

11.1 Where feasible, the Department of Labour should endeavour to ensure that copies of this
code are accessible and available in the official languages.
11.2 Employers and, where applicable, employer organisations should include the issue of
sexual harassment in their orientation, education and training programs.
11.3 Trade unions should include the issue of sexual harassment in their education and train-
ing programs for shop stewards and employees.
11.4 CCMA commissioners should receive specialised training to deal with sexual harassment
cases.
Appendix 3
Code of Good Practice on HIV and AIDS and the world of work
GN 451 – Government Gazette 35435 – 15 June 2012
PREAMBLE
HIV and AIDS continue to negatively impact on the livelihoods of millions of persons living with
or affected by the epidemic in South Africa. Within the world of work, HIV and AIDS impact
severely on productivity as a consequence of ill health resulting in increased absenteeism, low
morale, and increased staff turnover due to early deaths and possibly a change in markets and
demands for services.
In 2000 South Africa published a Code of Good Practice on Key Aspects of HIV and AIDS and
Employment (the Code) in line with the Employment Equity Act. The Code’s primary objective
was to guide employers, workers and trade unions to develop and implement HIV and AIDS
workplace policies and programmes. The Code was intended to protect and promote mutual
respect, dignity and the workers’ rights through the elimination of unfair discrimination against
people living with or affected by HIV and AIDS.
This Code has been utilised and referred to extensively in the development and implementation
of HIV and AIDS workplace Policies and Programmes. It has also been taken into account in
some of the judgments by the Courts in cases of unfair discrimination in relation to HIV.
Subsequent to the adoption of the International Labour Organization (ILO) Recommendation
concerning HIV and AIDS and the World of Work, 2010 (No. 200), South Africa as a member
state took a decision to review its Code and align it to the ILO Recommendation. The revised
Code seeks to assist employers, workers and their organisations in developing appropriate
responses in order to manage HIV and AIDS, TB and STIs in the world of work within the frame-
work of decent work in both the formal and informal sectors and in the public and the private
sectors.
In line with the ILO Recommendation No. 200, this Code provides for further emphasis on the
fundamental human rights of all workers, including the principle of gender equality and the
broadening of the scope to cover all those involved in the world of work.
1. DEFINITIONS
In this Code, unless the context indicates otherwise:
“Affected Persons” : means persons whose lives are changed by HIV and AIDS
owing to the broader impact of the pandemic;
“AIDS” : means Acquired Immunodeficiency Syndrome which results
from advanced stages of HIV infection and is characterised by
opportunistic infections or HIV-related cancers, or both;
“CCMA” : means the Commission for Conciliation, Mediation and
Arbitration;
“Confidentiality” : means the right of every person, worker, job applicant, job-
seekers, interns, apprentices, volunteers and laid-off and sus-
pended workers to have their information, including medical
records and HIV status kept private;
“Counselling” : means a confidential interactive session between a professional
and a client aimed to explore and identify the risks of the
client to HIV and AIDS;
“EAP” : means Employee Assistance Programme offered by many em-
ployers which is intended to help workers deal with personal
problems that might adversely impact their work performance,
health, and well-being;
“the Act” : means the Employment Equity Act, 1998 (Act No. 55 of 1998);
“HIV” : means the Human Immunodeficiency Virus, a virus that
weakens the human immune system;
continued
“Informed consent” : means a process of obtaining consent from a patient/worker

to ensure that the person fully understands the nature, impli-
cations and future consequences of the HIV test before such
person consents to take the test;
“PLHIV” : means persons living with HIV;
“Post Exposure Prophylaxis” : means antiretroviral, including medicines that are taken after
exposure or possible exposure to HIV. The exposure may be
occupational, as in a needle stick injury, or non-occupational,
as in unprotected sex with a person with HIV infection. The
latter is sometimes referred to as Non Occupational-Post
Exposure Prophylaxis;
“Reasonable Accommodation” : means any modification or adjustment to a job or to the work-
ing environment that enables a person living with HIV and
AIDS to have access to or participate or advance in employ-
ment;
“STIs” : means Sexually Transmitted Infections which are spread by the
transfer of organism from person to person during sexual con-
tact e.g. syphilis;
“Stigma” : means the social mark which, when associated with a person,
usually causes marginalisation or presents an obstacle to the
full enjoyment of social life by the person living with or
affected by HIV and AIDS;
“TB” : means tuberculosis which is an infectious disease characterised
by the growth of nodules (tubercles) in the tissues, especially
the lungs. Tuberculosis is more common in persons with
immune system problems such as HIV and AIDS;
“Unfair Discrimination” : means any distinction, exclusion or preference which has the
effect of nullifying or impairing equality of opportunity or
treatment in employment or occupation;
“VCT” : means Voluntary Counselling and Testing, which provides the
opportunity for the client to confidentially explore and under-
stand his or her HIV risks and to learn his or her HIV status
with the support of a counsellor;
“Vulnerability” : means the unequal opportunities, social exclusion, unemploy-
ment or precarious employment, resulting from the social,
cultural, political and economic factors that make a person
more susceptible to HIV infection and to developing AIDS;
“Worker” : means any person working under any form or arrangement;
“Workplace” : means any place where workers work;
“World of Work” : means a working environment in which persons are in some
way or another associated with and also includes persons as
reflected in Clause 4 of this Code.
2. INTRODUCTION
2.1 HIV and AIDS are a serious public health challenge which has socio economic, employ-
ment and human rights implications.
2.2 HIV poses a significant obstacle to the attainment of decent work and sustainable
development. It has led to the loss of the livelihoods of millions of persons living with or
affected by HIV and AIDS. Its effects are concentrated among the most productive age
groups and it imposes huge costs on enterprises through falling productivity, increased
labour costs and the loss of skills and experience.
2.3 HIV and AIDS affect every workplace, with prolonged staff illness, absenteeism, and
death, which impacts on productivity, employee benefits, occupational health and safe-
ty, production costs, workplace morale and escalating HIV associated with TB and STIs.
2.4 HIV thrives in an environment of poverty, rapid urbanisation, violence and destabilisa-
tion. Transmission is exacerbated by disparities in resources and patterns of migration
from rural to urban areas. Women are particularly more vulnerable to infection in cul-
tures and economic circumstances where they have limited sexual reproductive choices
and rights.
2.5 Through this Code, the country commits to mitigate the impact of the epidemic in the
world of work taking into account all relevant Conventions of the International Labour
Organization, including Recommendation No. 200.
2.6 One of the most effective ways of reducing and managing the impact of HIV and AIDS
in the workplace is through the implementation of workplace HIV and AIDS policies
and programmes. Addressing aspects of HIV and AIDS in the workplace will enable
employers, workers and their organisations and government to actively contribute to-
wards local, national and international efforts to prevent and control HIV and AIDS.
2.7 Every person should take personal responsibility in relation to HIV and AIDS to educate
themselves, prevent transmission, seek available treatment and treat others with dignity
and respect. All persons have the responsibility to support the achievement of the objec-
tives of this Code.
2.8 Partnerships between government, employers, workers and their organisations and
other relevant stakeholders are encouraged to ensure effective delivery of services and
increased coverage.
3. OBJECTIVES OF THE CODE

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

This Code applies to:
4.1 All workers working under all forms or arrangements, and at all workplaces, includ-
ing –
(a) persons in any employment or occupation;
(b) those in training, including interns and apprentices;
(c) volunteers;
(d) jobseekers and job applicants; and
(e) laid-off and suspended workers.
4.2 All sectors of economic activity, including the private and public sectors and the formal
and informal economies.
4.3 Armed forces and uniformed services.
5. KEY PRINCIPLES
The guiding principles in this Code are based on International Conventions and Recom-
mendations, The Constitution of the Republic of South Africa and national laws, which in-
clude:
5.1 Respect for human rights, fundamental freedoms and equality
The response to HIV and AIDS must be recognised as a contributing factor to the
realisation of human rights, dignity, fundamental freedoms, responsibility and equality
for all, including workers and their dependants.
5.2 HIV and AIDS is a workplace issue
HIV and AIDS is a workplace issue and must be treated like any other serious illness or
condition in the workplace. HIV and AIDS must be included among the essential ele-
ments of the national, provincial, local and sectoral response to the pandemic with full
participation of all stakeholders.
5.3 Reduce HIV-related stigma and unfair discrimination and promote equality of oppor-
tunity and fair treatment
Elimination of unfair discrimination remains a key principle for protection of the
rights of individuals. There must be no unfair discrimination against or stigmatisation
of workers on the grounds of real or perceived HIV status. It is the responsibility of
every worker and employer to eliminate unfair discrimination in the workplace.
5.4 Gender Equality
Women and girls are at greater risk and more vulnerable to HIV infection and are dis-
proportionately affected by HIV compared to men as a result of gender inequality.
Women’s empowerment is a key factor in responding to HIV and AIDS and the world
of work. Measures must be taken in the world of work to ensure gender equality, pre-
vent violence and harassment, protect sexual and reproductive health and rights and
involve men and women workers, regardless of their sexual orientation, in the HIV
response.
5.5 The right to access and continue in employment
Real or perceived HIV status is not a valid cause for termination of employment. Work-
ers with HIV-related illness must not be denied the possibility of continuing to carry out
their work unless proven medically unfit to do so. As with many other conditions,
workers with HIV and AIDS must be reasonably accommodated and be able to work for
as long as medically fit. Medical examination should be limited to the capacity of a
worker to perform the task(s) of a particular job.
5.6 Prevention
Prevention of all modes of HIV transmission and TB is a fundamental priority for the
country. In keeping with this principle the workplace must facilitate access to compre-
hensive information and education to reduce the risk of HIV transmission and HIV-TB
co-infection and STIs.
5.7 Treatment, Care and Support
Treatment, care and support services on HIV and AIDS must be accessible to all work-
ers and their dependants. All workers must have access to affordable health services,
social security, insurance schemes or other employment-related benefits either through
the employer, the State or non-governmental organisations. Programmes of care and
support must include measures of reasonable accommodation in the workplace for
persons living with HIV or HIV-related illnesses.
5.8 Social Dialogue/Consultations
Implementation of policies and programmes on HIV and AIDS should be based on co-
operation and trust amongst government, employers and workers and their represen-
tatives. Employers and workers should engage in the design, implementation and
evaluation of national and workplace programmes, with the active involvement of per-
sons living with HIV and AIDS.
5.9 Occupational Health and Safety

The workplace must be safe and healthy for all workers, and they must benefit from
programmes to prevent specific risks of occupational transmission of HIV and related
transmissible diseases, such as TB, especially in jobs most at risk, including the health
care sector.
5.10 Testing, Confidentiality and Disclosure
Workers and their dependants must enjoy protection of their privacy, including confi-
dentiality relating to their own HIV status or that of their co-workers. Workers must not
be required to undergo HIV testing or other forms of screening for HIV unless found
to be justified by the Labour Court. The results of HIV testing must be confidential and
not endanger access to jobs, tenure, job security or opportunities for advancement.
6. LEGAL FRAMEWORK
6.1 This Code must be read in conjunction with The Constitution of the Republic of South
Africa, 1996 (Act No. 108 of 1996) and all relevant legislation as amended, which in-
cludes –
(a) Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);
(b) Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of
1993);
(c) Employment Equity Act, 1998 (Act No. 55 of 1998);
(d) Labour Relations Act, 1995 (Act No. 66 of 1995);
(e) Occupational Health and Safety Act, 1993 (Act No. 85 of 1993);
(f) Unemployment Insurance Act, 2001 (Act No. 63 of 2001);
(g) Children’s Act, 2005 (Act No. 38 of 2005);
(h) Medical Schemes Act, 1998 (Act No. 131 of 1998);
(i) Mine Health and Safety Act, 1996 (Act No. 29 of 1996);
(j) National Health Act, 2003 (Act No. 61 of 2003);
(k) Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973);
(l) Promotion of Access to Information Act, 2000 (Act No. 2 of 2000); and
(m) Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act
No. 4 of 2000).
6.2 The contents of this Code must be taken into account when developing, implementing
or reviewing any workplace policies or programmes and must be read in conjunction
with the following legislative provisions as amended –
6.2.1 In accordance with both the common law and Section 14 of The Constitution of
the Republic of South Africa, all persons with HIV and AIDS have a right to priv-
acy, including privacy concerning their HIV status. Accordingly, there is no
general legal duty on a worker to disclose his or her HIV status to his or her
employer or to other workers;
6.2.2 This Code is issued in terms of section 54(1)(a) of the Employment Equity Act
and is based on the principle that no person may be unfairly discriminated
against on the basis of real or perceived HIV status;
6.2.3 Section 6(1) of the Employment Equity Act provides that no person may unfairly
discriminate against a worker or an applicant for employment, in any employ-
ment policy or practice, on the basis of his or her HIV status;
6.2.4 Section 6(3) of the Employment Equity Act prohibits harassment of a worker
based on his or her HIV status. Measures must be adopted at the workplace to
reduce the transmission of HIV and AIDS to alleviate its impact by ensuring
actions to prevent and prohibit violence and harassment in the workplace;
6.2.5 Section 7(2) of the Employment Equity Act prohibits testing of a worker to
determine that worker’s HIV status unless such testing is determined to be justi-
fiable by the Labour Court in terms of section 50(4) of the Employment Equity
Act;
6.2.6 In accordance with section 187(1)(f) of the Labour Relations Act, a worker with
HIV and AIDS must not be dismissed based on his or her HIV and AIDS status;
6.2.7 In terms of section 8(1) of the Occupational Health and Safety Act, an employer
is obliged to provide a safe workplace;
6.2.8 Sections 2(1) and 5(1) of the Mine Health and Safety Act provide that an
employer is required to create a safe workplace;
6.2.9 A worker who is infected with HIV as a result of an occupational exposure to
infected blood or bodily fluids must apply for benefits in terms of section 22(1)
of the Compensation for Occupational Injuries and Diseases Act;
6.2.10 In accordance with the Basic Conditions of Employment Act, every employer is
obliged to ensure that all workers receive certain basic standards of employ-
ment, including the minimum number of sick leave days (section 22(2));
6.2.11 In accordance with section 24(2)(e) of the Medical Schemes Act, a registered
medical aid scheme must not unfairly discriminate directly or indirectly against
its members on the basis of their “state of health”;
6.2.12 In accordance with section 20 of the Unemployment Insurance Act, every
employer is obliged to ensure that all workers are able to exercise their right to
illness benefits;
6.2.13 Section 20(1) of the National Health Act states that Health Care personnel must
not be unfairly discriminated against on account of their health status. However,
the head of the health establishment concerned, subject to any applicable law
and in accordance with any guidelines determined by the Minister, may impose
conditions on the service that may be referred by a health care provider or
health care worker on the basis of his or her health status;
6.2.14 In terms of section 13(1)(b) of the Children’s Act, every child has the right to
have access to information regarding his or her HIV Status;
6.2.15 In accordance with section 16(5) of the Labour Relations Act an employer is not
required to disclose the HIV status of a worker unless that worker consents to
the disclosure of his or her HIV status;
6.2.16 Sections 37(1) and 63(1) of the Promotion of Access to Information Act provide
that employers must not disclose the HIV status of a worker unless that worker
agrees to or consents to the disclosure of his or her HIV status;
6.2.17 In terms of section 1(c) of the Occupational Diseases in Mines and Works Act,
TB is a compensable disease where it is found, in the opinion of the certification
committee, that a person contracted such disease while the person was perform-
ing risk work or where such person was already affected at any time within the
twelve month period immediately following the date on which that person per-
formed such work for the last time; and
6.2.18 According to section 99(3) of the Occupational Diseases in Mines and Works
Act, where the certification committee has found that a person is suffering from
TB which is attributable partly to HIV but not mainly to work at a mine or works
and where such person is not in receipt of full benefits for the TB in terms of
the Compensation for Occupational Injuries and Diseases Act, or any other law,
such person may receive benefits not exceeding one half of the benefits provid-
ed for in terms of the Occupational Diseases in Mines and Works Act.
7. ELIMINATION OF UNFAIR DISCRIMINATION AND PROMOTION OF EQUAL

OPPORTUNITY AND TREATMENT
Policies and programmes must respect national guidelines on Counselling, HIV Testing,
Confidentiality and Disclosure.
7.1 Counselling and Informed Consent

7.1.1 HIV testing of workers must be provided with informed consent and proper
counselling. Where employers or workers facilitate provision of HIV testing
facilities, they must ensure a conducive environment for counselling.
7.1.2 Pre-Test counselling should take place prior to a worker being tested to deter-
mine his or her HIV status.
7.1.3 Post-Test counselling should take place to determine whether a worker has tested
negative or positive. Proper procedures should be followed in advising the
worker on the next steps, depending on the HIV test results.
7.1.4 No employer may require a worker or an applicant for employment to under-
take an HIV test in order to ascertain that worker’s HIV status. Testing must be
with consent and voluntary.
7.2 HIV Testing
7.2.1 Authorisation for mandatory HIV testing of workers may only be obtained from
the Labour Court in terms of section 7(2) of the Employment Equity Act.
7.2.2 Mandatory Testing for HIV is not a requirement in the world of work, including
the following circumstances –
(a) during an application for employment;
(b) as a condition of employment;
(c) during procedures related to termination of employment; and
(d) as an eligibility requirement for training or staff development programmes.
7.2.3 Anonymous, unlinked surveillance or epidemiological HIV testing in the work-
place may occur provided it is undertaken in accordance with ethical and legal
principles. The information obtained must not be used to unfairly discriminate
against workers. Testing will not be considered anonymous if there is a reason-
able possibility that a worker’s HIV status can be deduced from the results.
7.3 Confidentiality and Disclosure
7.3.1 All persons, including those with HIV and AIDS have the legal right to privacy.
A worker is therefore not legally required to disclose his or her HIV status or
related medical information to his or her employer or to other workers.
7.3.2 The results of HIV testing must be confidential and not endanger access to jobs,
tenure, job security or opportunities for advancement.
7.3.3 Where a worker chooses to voluntarily disclose his or her HIV status to the
employer or to other workers, this information must not be disclosed to others
without the worker’s express written consent. Where written consent is not pos-
sible, steps must be taken to confirm that the worker wishes to disclose his or
her HIV status.
7.3.4 Mechanisms must be created to encourage openness, acceptance and support
for those employers and workers who wish to voluntarily disclose their HIV sta-
tus within the workplace.
7.3.5 Access to personal data relating to a worker’s HIV status and related medical
data must be bound by the rules of confidentiality consistent with the relevant
national laws.
7.4 Reasonable Accommodation
7.4.1 Section 15(2)(c) of the Employment Equity Act requires employers to provide
reasonable accommodation for all workers, including persons living with HIV
and AIDS, in order for them to access and enjoy equal employment opportun-
ities.
7.4.2 The obligation to make reasonable accommodation may arise when a worker
voluntarily discloses his or her HIV status.
7.4.3 Employers must also accommodate workers when the work or the work environ-
ment changes or impairment varies which affects the worker’s ability to perform
the essential functions of the job.
7.4.4 Reasonable accommodation includes but is not limited to –
(a) adapting existing facilities to make them accessible;
(b) adapting existing equipment or acquiring new equipment including com-
puter hardware and software;
(c) re-organising workstations;
(d) changing training and assessment materials and systems;
(e) restructuring jobs so that non-essential functions are re-assigned;
(f) adjusting working time and leave; and
(g) providing specialised supervision, training and support in the workplace.
7.5 Employee Benefits
7.5.1 Workers with HIV and AIDS must not be unfairly discriminated against in the
allocation of employee benefits.
7.5.2 Where an employer offers a medical benefit, that employer must ensure that
this benefit does not unfairly discriminate, directly or indirectly, against any
worker on the basis of his or her real or perceived HIV status.
7.5.2.1 There should be no unfair discrimination against workers or their
dependants based on real or perceived HIV status to access social secu-
rity systems and occupational insurance schemes or in relation to bene-
fits under such schemes, including health care and disability, death and
survivor’s benefits.
7.6 Grievance Procedures
7.6.1 Grievance mechanisms and procedures must be easily accessible to ensure
effective redress in cases of violation.
7.6.2 Employers must make workers aware of the grievance procedures, particularly
to address unfair discrimination relating to HIV in the workplace.
7.6.3 Employers should ensure that the rights of workers with regard to HIV and
AIDS, TB and other illnesses and the remedies available to them in the event of
a breach of such rights become integrated into existing grievance procedures.
7.6.4 Where all internal dispute resolution process has been exhausted and the griev-
ance remains unresolved, any party to the dispute may refer the dispute to the
CCMA for the unfair discrimination within six months in terms of section 10(2)
of the Employment Equity Act.
7.7 Termination of Employment
7.7.1 Real or perceived HIV status in itself is not a valid cause for termination of
employment. Workers with HIV-related illness must not be denied the oppor-
tunity of continuing to carry out their work.
7.7.2 Where a worker has become too ill to perform his or her current work, an employ-
er is obliged to explore alternatives, including reasonable accommodation and
redeployment.
7.7.3 Where a worker has become too ill to perform his or her current work, an employ-
er is obliged to follow accepted guidelines regarding dismissal for incapacity be-
fore terminating a worker’s services, as set out in the Code of Good Practice on
Dismissal contained in Schedule 8 of the Labour Relations Act.
7.7.4 The employer must ensure that as far as possible, the worker’s right to confiden-
tiality regarding his or her HIV status is maintained during any incapacity pro-
ceedings. A worker must not be compelled to undergo an HIV test or to disclose
his or her HIV status as part of such proceedings unless the Labour Court has
authorised such a test.
7.7.5 Where a worker alleges unfair dismissal for HIV and AIDS, he or she should
refer the matter to the CCMA for unfair dismissal in terms of section 185 or 187
of the Labour Relations Act within 30 days of the dismissal.
8. PROMOTING A HEALTHY AND SAFE WORKING ENVIRONMENT

Prevention strategies must be adapted to national conditions and the type of workplace and
must take into account gender, cultural, vulnerable populations, social and economic con-
cerns.
8.1 Prevention Programmes
Workplace prevention programmes must ensure –
(a) that accurate and up to date relevant and timely information is made available
and accessible to all in a culturally sensitive format and language through the dif-
ferent channels of communication available;
(b) comprehensive education programmes to help women and men understand and
reduce the risk of all modes of HIV transmission. This must include mother-to-
child transmission and to understand the importance of changing risk behaviours
related to infection;
(c) effective occupational safety and health measures, including harm-reduction strat-
egies;
(d) measures to encourage workers to know their own HIV status through voluntary
counselling and testing;
(e) access to all means of prevention, including male and female condoms, medical
male circumcision, elimination of mother-to-child transmission and where appro-
priate information about correct use and the availability of post-exposure prophy-
laxis; and
(f) effective measures to reduce high-risk behaviours, including for the most at-risk
groups with a view to decreasing the incidence of HIV and AIDS.
8.2 Treatment, Care and Support
8.2.1 Employers must ensure that workplace policies and programmes pertaining to
health interventions are determined in consultation with workers and their rep-
resentatives and should be linked to public health services.
8.2.2 Employers must ensure that those workers and their dependants living with HIV
and AIDS-related illnesses benefit from access to health care, whether this is pro-
vided under public health, social security systems or private insurance or other
schemes.
8.2.3 All persons covered by this Code, including workers and their dependants living
with HIV and AIDS, must be entitled to health services in terms of clause 8.2.2 of
this Code including access to free or affordable –
(a) voluntary counselling and testing;
(b) antiretroviral treatment and adherence education, information and support;
(c) nutrition consistent with treatment requirements;
(d) treatment for opportunistic infections and STIs, and any HIV-related ill-
nesses, in particular tuberculosis; and
(e) support and prevention programmes including psychosocial support.
8.2.4 Programmes of care and support must include measures of reasonable accom-
modation in the workplace for workers living with HIV or HIV-related illnesses.
8.2.5 Care and support are critical elements that must guide a workplace in respond-
ing to HIV and AIDS. Mechanisms must be created to encourage openness,
acceptance and support for workers infected and affected by HIV and AIDS and
to ensure that they are not unfairly discriminated against nor stigmatised.
8.2.6 Workplaces must endeavour to provide counselling and other forms of social
support to workers infected and affected by HIV and AIDS. Where health-care
services exist at the workplace, appropriate treatment must be provided. Where
these services are not possible, workers must be informed about the location of
available outside services.
8.2.7 Workers with HIV and AIDS must be treated no less favourably than workers
with other serious illnesses in terms of benefits, workers’ compensation and rea-
sonable accommodation.
8.2.8 Workers with HIV and AIDS should be encouraged to use expertise and assist-
ance from within the organisation for counselling. Where this is not available,
employers may then acquire the necessary assistance and expertise from the out-
side.
8.3 Occupational Health and Safety
8.3.1 An employer is obligated to provide and maintain a workplace that is safe and
without risk to the health of its workers.
8.3.2 HIV and AIDS must form an integral part of any workplace Occupational Health
and Safety strategy.
8.3.3 The working environment must be safe and healthy in order to prevent trans-
mission of HIV and TB in the workplace.
8.3.4 Every workplace must ensure that it complies with the provisions of the Occupa-
tional Health and Safety Act, including the Regulations on Hazardous Biological
Agents and the Mine Health and Safety Act. Every workplace must also ensure
that its policy deals with, amongst others, the risk of transmission, appropriate
training, awareness, education on the use of universal infection control measures
so as to identify, deal with and reduce the risk of HIV transmission in the work-
place.
8.3.5 All workers must be made aware of the procedures to be followed in applying for
compensation for occupational infections and diseases and the reporting of all
occupational accidents.
8.3.6 Health and safety measures adopted at the workplace to prevent workers’ expo-
sure to HIV and TB and to minimise the risk of such workers contracting HIV
and TB, must include universal precautions, accident and hazard prevention
strategies, work practice control, personal protective equipment, environmental
control measures and post exposure prophylaxis.
8.3.7 Employers, workers and their organisations must take responsibility for contrib-
uting towards a safe and healthy working environment as per the Occupational
Health and Safety Act.
8.4 Children and Young Persons
8.4.1 Government, employers and workers, including their organisations, must adopt
appropriate measures to combat child labour and child trafficking that may
result from the death or illness of family members or caregivers due to HIV and
AIDS and to reduce the vulnerability of children to HIV and AIDS and TB. This
is considered in view of the relevant International, Regional and National stand-
ards on Fundamental Principles and Rights of children and young persons. Spe-
cial measures must be taken to protect these children from sexual abuse and
sexual exploitation.
8.4.2 Measures must be taken to protect children and young workers against HIV and
TB infection. Such measures must include the special needs of children and
young persons in the response to HIV and AIDS in national, provincial, local,
sectoral and workplace policies and programmes. These should include objective
sexual and reproductive health education, in particular the dissemination of
information on HIV and AIDS through vocational training and in youth em-
ployment programmes and services.
9. MANAGEMENT OF HIV AND AIDS IN THE WORKPLACE

9.1 Assess the impact of HIV and AIDS in the Workplace
Employers, trade unions and employees must develop and effectively implement inte-
grated gender sensitive strategies to respond to the impact of HIV and AIDS, including
TB and STIs, in the workplace. This must be done as far as possible in cooperation with
national, provincial, local and sectoral initiatives, including –
(a) impact assessment that includes risk profiling, resource implications, environmen-
tal assessment, vulnerability and susceptibility to HIV infection; and
(b) the development and implementation of HIV and AIDS workplace policies and
programmes that are free from unfair discrimination and promote human rights.
9.2 Developing HIV and AIDS Workplace Programmes
In developing and implementing long and short term measures to deal with and
reduce this impact, the following must be taken into account –
(a) compliance with legal obligations;
(b) management commitment;
(c) consultation with relevant stakeholders;
(d) development and effective implementation of HIV and AIDS and TB Workplace
Policies, Prevention and Wellness Programmes;
(e) resources, including human, financial and operational resources must be allocated
for the effective development and implementation of policies and programmes;
(f) policies and programmes must be informed by the outcomes of research and evi-
dence; and
(g) monitoring and Evaluation of HIV and AIDS policies and programmes must be put
in place.
9.3 Education, Training and Information
All social partners have the responsibility to promote education, training and infor-
mation about HIV and AIDS in the world of work.
9.3.1 Training, safety instructions and any necessary guidance in the workplace related
to HIV and AIDS must be provided in a clear and accessible form for all workers.
9.3.2 Training, instructions and guidance must be sensitive to gender and cultural
concerns and adapted to the characteristics of the workforce, taking into account
the risk factors for the workforce.
9.3.3 Up to date scientific and socio-economic information and, where appropriate,
education and training on HIV and AIDS must be available to employers and
workers’ representatives, in order to assist such employers and workers’ rep-
resentatives to make informed decisions and take appropriate measures in the
workplace.
9.3.4 Workers including the most vulnerable must receive awareness raising infor-
mation and appropriate training on HIV infection control procedures in the
context of workplace accidents and first aid. All Workers, including those whose
jobs put them at risk of exposure to human blood, blood products and other
body fluids must receive additional training in exposure prevention, exposure
registration procedures and post-exposure prophylaxis.
9.3.5 Workers and their representatives must be informed and consulted on measures
taken to implement workplace policies and programmes related to HIV and
AIDS, TB and other related illnesses.
10. MONITORING AND EVALUATION (M&E)

10.1 Employers and workers, including their organisations, should –
(a) design and implement a HIV and AIDS workplace M&E plan that includes strat-
egies to address TB and STIs in the world of work;
(b) identify the key elements needed to make the M&E system work;
(c) select and make use of indicators that are specific, measurable, attainable, rele-
vant and time-bound; and
(d) gather and analyse qualitative and/or quantitative information and communicate
it effectively.
10.2 Employers in collaboration with the workers must establish monitoring and evalua-
tion mechanisms for workplace programmes in order to track implementation and
strategically respond to the epidemic.
10.3 Data should be disaggregated in order to prioritise targeted intervention measures.
10.4 The monitoring mechanism strategies should take into account and support the
national monitoring and evaluation efforts that relates to curbing HIV and AIDS, TB
and STIs.
10.5 Small businesses that are not in a position to have sophisticated monitoring and evalu-
ating mechanisms in place must adopt simple strategies to monitor and evaluate the
HIV and AIDS, TB and STIs programmes in order to track implementation.
5
UNEMPLOYMENT INSURANCE LAW
5.1 Introduction
The Unemployment Insurance Act of 1966 was repealed and replaced by the Unemployment
Insurance Act 63 of 2001 and the Unemployment Insurance Contributions Act 4 of 2002, both of
which came into operation on 1 April 2002. Significant amendments were introduced by the
Unemployment Insurance Amendment Act 10 of 2016, which took effect on 19 January 2017.
Further amendments have been included in the Labour Laws Amendment Act 10 of 2018. This
1
Act, save for sections 9 and 10 thereof, has not yet come into operation.
Like its predecessor, the 2001 Unemployment Insurance Act provides for the payment of bene-
fits in cases of unemployment, illness, maternity, adoption and qualifying dependants. Once the
Labour Laws Amendment Act of 2018 takes effect more benefits will be added. It will be possible
for parents to claim parental benefits or commissioning parental benefits.
The purpose of the Unemployment Insurance Act (UIA) is set out in section 2:
The purpose of this Act is to establish an unemployment insurance fund to which employers and
employees contribute and from which employees who become unemployed or their beneficiaries, as
the case may be, are entitled to benefits and in doing so to alleviate the harmful economic and social
effects of unemployment.
The purpose of the Unemployment Insurance Contributions Act (UICA) is to provide for the
payment of contributions for the benefit of the Unemployment Insurance Fund and procedures
for the collection of such contributions.
The Unemployment Insurance Fund and Unemployment Insurance Board, established under
the 1966 Act, have been abolished and a new Fund and Board have been established in terms of
the 2001 UIA. The income of the Fund is derived mainly from contributions made by employers
and employees.
The Unemployment Insurance Commissioner and claims officers are appointed to consider
and process claims for benefits.
5.2 Definitions (s 1)
Some of the more important definitions in the UIA are:
“contributor” means a natural person –
(a) who is or was employed;
(b) to whom this Act, in terms of section 3, applies; and
(c) who can satisfy the Commissioner that he or she has made contributions for purposes of
this Act;
“child” means a person as contemplated in section 30(2) [a dependent child of a deceased con-
tributor] who is under the age of 21 years and includes any person under the age of 25 who is a
learner and who is wholly or mainly dependent on the deceased;
________________________
1 As at the date of going to print (June 2019).
135
“domestic worker” means an employee who performs domestic work in the home of his or her em-
ployer, and includes a –
(a) gardener;
(b) person employed by a household as a driver of a motor vehicle; and
(c) person who takes care of any person in that home,
but does not include a farm worker;
“employee” means any natural person who receives remuneration or to whom remuneration accrues
in respect of services rendered or to be rendered by that person, but excludes any independent
contractor;
“employer” means any person, including a person acting in a fiduciary capacity, who pays or is liable
to pay to any person any amount by way of remuneration, and any person responsible for the pay-
ment of any amount by way of remuneration to any person under the provisions of any law or out
of public funds, excluding any person who is not acting as a principal;
“remuneration” means “remuneration” as defined in section 1 of the Unemployment Insurance
Contributions Act (UICA). In terms of the latter remuneration means “remuneration” as defined
in paragraph 1 of the Fourth Schedule to the Income Tax Act, but does not include any amount
paid or payable to an employee –
(a) by way of any pension, superannuation allowance or retiring allowance;
(b) which constitutes an amount contemplated in paragraphs (a), (cA), (d), (e) or (eA) of the
definition of “gross income” in section 1 of the Income Tax Act; or
(c) by way of commission. (This definition is found in the UICA).
Once the Labour Laws Amendment Act of 2018 takes effect, some definitions will be insert-
ed into section 1 of the UIA. The following deserve mention:
“adoption order” means an adoption order as envisaged in the Children’s Act 38 of 2005;
“prospective adoptive parent” means a person who complies with the requirements set out in section
231 (2) of the Children’s Act.
5.3 Application of the Unemployment Insurance Act (s 3)

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

In terms of Chapter 2 (ss 4–11) of the UIA the Unemployment Insurance Fund is created to
provide for the payment of benefits. The Fund derives its income from contributions by
employers and employees, monies appropriated by Parliament and several other sources.
The Fund is used for the payment of benefits, reimbursement of excess contributions to
employers, payment of remuneration and allowances to members of the Unemployment
Insurance Board, the financing of the retention of contributors in employment, the
Unemployment insurance law 137
re-entry of contributors into the labour market and any other scheme aimed at vulnerable
workers.
The Director General is the accounting authority of the Fund and has to appoint an
actuary to review the actuarial value and the financial soundness of the Fund annually.
5.4.2 Unemployment Insurance Board

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

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

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

The Director General has varied powers and functions to oversee the administration of the
UIA and the activities of the Unemployment Insurance Fund.
5.5 Benefits (Ch 3)
5.5.1 Right to benefits

Chapter 3 of the UIA regulates the payment of benefits and prescribes the conditions and
requirements that must be complied with in order to qualify for benefits. Chapter 3 also
determines the circumstances in which a person will not receive or forfeit benefits.
In terms of section 12(1) of the UIA a contributor is entitled to unemployment benefits,
illness benefits, maternity benefits or adoption benefits and a dependant of a deceased
contributor is entitled to dependants’ benefits. Once the Labour Laws Amendment Act of
2
2018 takes effect, a contributor will also be entitled to parental benefits or commissioning
parental benefits.
A domestic worker who is employed by more than one employer and who loses one job
is, despite still being employed by another employer(s), entitled to benefits if his total
income falls below the benefit level that he would have received had he become completely
unemployed (s 12(1A)). For the purposes of calculating the benefits for the domestic
worker in these circumstances, the total income derived from continued employment plus
the amount of benefits calculated may not exceed the benefits that would have been paid if
the contributor had become wholly unemployed. This means that the unemployment
benefits will be paid as a “top-up” so that the benefits payable to the employee together with
the wages still being earned will not exceed 100% of the employee’s wages had he been
fully employed.
A contributor employed in any sector who loses income due to reduced working time
(“short time”) is, despite still being employed, entitled to benefits if his total income falls
below the benefit level that he would have received if he had become wholly unemployed
(s 12(1B)).
Unlike the 1966 Act, a person who earns in excess of the threshold amount determined
by the Minister from time to time is, in terms of the 2001 Act, entitled to benefits (and must
contribute to the fund), but benefits will be calculated as if the contributor earns the
threshold amount. Currently the threshold is R212 539 per annum (or R17 712 per month
and R4 087 per week) (Government Gazette no 40691, GN 231 of 17 March 2017).
In terms of section 14 a contributor is not entitled to benefits for any period that he:
• fails to comply with any provision of the UIA or any other law relating to unemployment;
or
• is suspended from receiving benefits.
The Unemployment Insurance Commissioner may suspend a contributor or a dependant for
a period of up to five years from receiving benefits if he submitted a false or fraudulent
claim, failed to inform a claims officer of the resumption of work or failed to repay, on
demand, any benefits that were paid in error to him or her (s 36(1)). The decision to
suspend a contributor from receiving payments does not absolve an employer from its duty
to contribute to the Fund.
5.5.2 Calculation of benefits

A contributor’s entitlement to benefits accrues at a rate of one day’s benefit for every com-
pleted four days of employment as a contributor, subject to a maximum accrual of 365 days’
benefit in the four-year period immediately preceding the day after the last date of the
employment period (s 13(3)(a)).
The period of employment is calculated from the day that a contributor commences
employment and runs up to and includes the day on which employment is terminated.
Where an employee’s services are terminated on notice and the employee is paid in lieu of
notice instead of working during the notice period, the notice period forms part of the
period of employment. Similarly, where a merchant seaman receives remuneration in terms
of section 140 of the Merchant Shipping Act of 1951, the period in respect of which he
received remuneration forms part of the period of employment (s 13(4)).
________________________
2 As at the date of going to print (June 2019) the Amendment Act has not come into operation, save for
ss 9 and 10 thereof that came into operation on 1 March 2019. S 9 of the Amendment Act amends s 13
of the UIA (dealing with the accrual of benefits) and s 10 amends s 24 of the UIA (dealing with mater-
nity benefits).
Maternity benefits are paid at a fixed rate of 66%. Unemployment, illness, adoption and
dependents’ benefits are paid at a rate between 38% and 60% for the first 238 days and
from day 239 up to day 365 at a fixed rate of 20%.
If a contributor has received benefits during the preceding four years the number of days
in respect of which benefits were paid must be subtracted from the total days accrued over
the four years (s 13(6)). However, the total number of days accrued is not affected and may
not be reduced because of the payment of maternity benefits(and when the Labour Laws
Amendment Act takes effect, parental benefits, adoption benefits and commissioning
parental benefits). Similarly, the payment of maternity, adoption, parental and commission-
ing parental benefits may not affect the payment of unemployment benefits (s 13(5) &
(5A)).
The following guide may be used to calculate the number of days to a contributor’s
credit in order to establish how much benefits he is entitled to:
Step 1: Determine the total number of days that the contributor was employed and con-
tributing in the four-year period immediately preceding the date of unemploy-
ment.
Step 2: Divide the total number of days by 4, disregarding any fraction of the resultant
figure.
Step 3: Subtract from this number the days received in the preceding four-year period
(excluding maternity, parental, adoption or commissioning parental benefits).
Step 4: The resultant figure determines the days of benefits that a contributor is entitled
to.
The scale of benefits to which a contributor is entitled is contained in Schedule 3 of the Act
and is calculated in accordance with the formulae in Schedule 2. Benefits are paid on a
sliding scale, with lower income contributors receiving a larger percentage of benefits than
higher income contributors.
For purposes of calculating the benefits payable to a contributor, the daily rate of re-
muneration (subject to the prescribed maximum) must be determined. In order to deter-
mine the daily rate the monthly remuneration is multiplied by 12 and divided by 365. Or, if
the contributor is paid weekly, a week’s pay is multiplied by 52 and divided by 365 (s 13(1)).
If the contributor’s remuneration fluctuates significantly from period to period, the calcu-
lation must be based on his average remuneration over the previous six months (s 13(2)).
5.5.3 Unemployment benefits

The provisions relating to unemployment benefits are contained in Part B of Chapter 3 of
the UIA (ss 15–18).
An unemployed contributor is entitled to unem-

ployment benefits for any period of unemploy-
ment lasting more than 14 days
• if the reason for the unemployment is:
– the termination of the contributor’s con-
tract of employment by the employer or
the ending of a fixed-term contract;
– the dismissal of the contributor in terms of
section 186 of the LRA of 1995;
– insolvency in terms of the Insolvency Act of
1936; or
– in the case of a domestic worker, if the con-
tract was terminated because of the death
of the employer;
• if application is made in accordance with the
prescribed requirements;
• if the contributor is registered as a work-
seeker with a labour centre established under
UNEMPLOYMENT the Skills Development Act of 1998;
BENEFITS
• if the contributor is capable of and available
(s 16)
for work. A contributor who becomes ill while
in receipt of unemployment benefits remains
entitled to unemployment benefits if the
claims officer is satisfied that the illness is not
likely to prejudice the contributor’s chance of
securing employment;
• an unemployed contributor is not entitled to
unemployment benefits if he or she fails to
report at the times and dates stipulated by the
claims officer or if he or she refuses, without
just reason, to undergo training and voca-
tional counselling for employment under any
scheme approved by the DG in terms of the
UIA or any other law;
• if the contributor receives unemployment
benefits and without just reason refuses to
accept appropriate, available work or to
undergo appropriate training or vocational
counselling, the claims officer may impose a
penalty of up to a maximum of thirteen weeks
during which no benefits will be paid to the
contributor.
Application for unemployment benefits must be made in the prescribed form and within 12
months of the termination of the contract of employment. The Commissioner may con-
done a late application on just cause shown (s 17(1) and (2)).
The claims officer must investigate the application and, if it complies with the provisions
of the UIA, the claims officer must approve the application, determine the amount of the
benefits, authorise the payment thereof and stipulate when the applicant must report to the
employment office for purposes of confirming that he is capable and available for work and
has been unemployed for the period in respect of which the unemployment benefit has
been claimed (s 17(3) and (4)).
If the application does not comply with the provisions of the UIA, the claims officer must
advise the applicant in writing thereof and state the reasons why the application is defective
(s 17(5)).
The unemployment benefits must be paid to the contributor at the employment office at
which the application was made or at any other employment office determined by the
applicant at the time of application (s 18).
5.5.4 Illness benefits

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

any period of illness if:
– he is unable to perform work on account
of illness;
– he fulfils any prescribed requirements in
respect of any specified illness; and
ILLNESS – application is made in accordance with the
BENEFITS prescriptions of the UIA.
(s 20) • A contributor is not entitled to illness benefits
if the period of illness is less than seven (7)
days and for any period during which he is
entitled to unemployment benefits or adop-
tion benefits. The contributor is further not
entitled to illness benefits if he, without just
reason, refuses or fails to undergo medical
treatment or to carry out the instructions of a
medical practitioner, chiropractor or homeo-
path.
When illness benefits are calculated, regard must be had to any paid sick leave that was granted
to the contributor in terms of any law, collective agreement or contract of employment. Illness
benefits may not be more than the remuneration the contributor would have received had he
not taken ill (s 21). This, again, refers to a “top-up”, in other words, any remuneration received
by the employee together with the illness benefits may not amount to more than 100% of the
employee’s ordinary income.
Application for illness benefits must be made personally in the prescribed form. If the con-
tributor cannot lodge the application personally, the claims officer may authorise any other
person to lodge the application on behalf of the applicant (s 22(1)).
The application for illness benefits must be made within six months of the commencement of
the period of illness, but the Commissioner may condone a late application on good cause
shown (s 22(2)).
The claims officer must investigate the application and, if it complies with the provisions of
the UIA, the application will be approved and the claims officer will authorise payment of the
determined amount of benefits (s 22(3) & (4)).
If the application does not comply with the prescripts, the applicant must be advised thereof
in writing (s 22(5)).
Illness benefits are paid at the employment office where the application was made or at any
other employment office if so directed by the applicant at the time of application. Payment is
made to the contributor or to any other authorised person (s 23).
5.5.5 Maternity benefits

The provisions relating to maternity benefits are contained in Part D of Chapter 3 (ss 24–26)
of the UIA.
• A contributor who is pregnant is entitled to

maternity benefits for any period of preg-
nancy or delivery and the period thereafter if
application is made in accordance with the
MATERNITY provisions of Part D.
BENEFITS • For the purposes of maternity benefits the
(s 24) maximum period of maternity leave is 17.32
weeks.
• A contributor who has a miscarriage during
the third trimester or bears a still-born child
is entitled to full maternity benefits of 17.32
weeks.
• A contributor is entitled to benefits only if she
was in employment for at least 13 weeks be-
fore the date of the application for benefits.
Maternity benefits are paid at a rate of 66% of the earnings of the contributor as at the date
of the application for benefits (subject to the threshold) (s 12(3)(c)). However, when
maternity benefits are calculated, regard must be had to any paid maternity leave the
contributor may have received in terms of any law, collective agreement or a contract of
employment. Maternity benefits may not be more than the remuneration the contributor
would have received if she had not been on maternity leave (s 24). Again, the maternity
benefits are a “top-up” so that any remuneration earned together with the maternity bene-
fits do not give the employee an income of more than 100% of her normal income.
An application for maternity benefits must be made in the prescribed form before or
after childbirth, but no later than 12 months after the date of birth of the child (s 25(1)).
A claims officer must investigate the application. If compliant, the application will be
approved and the amount to be paid will be determined (s 25(3) & (4)). If the application
is defective, the claims officer must advise the applicant thereof in writing (25(5)).
Benefits are paid to the contributor at the employment office where the application was
made or at any other employment office, as directed by the applicant at the time of appli-
cation (s 26).
5.5.6 Parental benefits

The right to parental benefits is a new right that has been introduced by the Labour Laws
Amendment Act of 2018. It finds no application yet as the Amendment Act has not come
3
into operation.
Once the Amendment Act takes affect new sections are inserted in the UIA. The new sec-
tions 26A–26C (Part DA of Chapter 3) regulate the payment of parental benefits.
________________________
3 As at the date of going to print (June 2019). Ss 9 and 10 of the Amendment Act are in force since March
2019, but do not deal with parental benefits.
A contributor who is a parent is entitled to

parental leave of ten consecutive days and may
then claim parental benefits if the following
conditions are met:
PARENTAL • if the contributor is the registered father of
BENEFITS the child in terms of the Births and Deaths
(s 25A) Registration Act of 1992;
• if, in the case of adoption, the child is below
the age of two or such a child is placed in the
care of a prospective adoptive parent pending
an adoption order;
• if a baby is born as a result of a surrogate
motherhood agreement (as defined in the
Children’s Act);
• if the employee has been in employment for
at least 13 weeks prior to the application for
benefits (whether having contributed to the
Fund or not);
prescripts of Part DA of the UIA;
A parent is disqualified from claiming parental
benefits if he has claimed adoption benefits or
commissioning parental benefits.
In the case of the birth of a child the entitlement to benefits commences on the date the
child is born, whether by way of a natural birth or through a surrogate. Where a young
child is adopted, the right to benefits commences on the date the court hands down the
adoption order or the date the court places the child in the care of the adoptive parent
pending the final adoption order (s 26A(2)).
An application for parental benefits must be submitted in the prescribed form within 12
months after the birth of the child or, in the case of adoption, the earlier date of the adop-
tion order or the date the child has been placed in the care of the prospective adoption
parent (s 26B(1) & (2)).
A claims officer will consider the application and if found compliant, the payment of
benefits will be authorised (s 26(3) & (4)). If the application does not comply with the
prescripts of the Act, the claims officer will advise the applicant accordingly (s 26B (5)).
Parental benefits are 66% of the contributor’s earnings as at the date of application, sub-
ject to the threshold (s 12(3)(cA). However, when parental benefits are calculated and
authorised, regard must be had to any payment the contributor may have received in terms
of any law, collective agreement or a contract of employment (s 26A(3)). The benefits are a
“top up”, so that the contributor will not be enriched by receiving more that the ordinary
income.
Parental benefits are paid at the employment office where the application was submitted
or at another employment office if so directed by the applicant at the time of the applica-
tion (s 26C).
5.5.7 Adoption benefits

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

• if the child has been adopted in terms of the
ADOPTION Children’s Act of 2005 ;or
BENEFITS • if the child has been placed in the care of a
(s 27) prospective adoptive parent pending the final
4
adoption order;
• if the period the contributor was not working
was spent caring for the child;
• if the application is made in accordance with
the prescripts of Part E of the UIA.
The current legal position is that the entitlement to adoption benefits commences on the
date of the final adoption order (s 27(2)). This will change when the Labour Laws Amend-
ment Act takes effect. In terms of the amended section 27)(2) the entitlement to adoption
benefits commences on the date of the final adoption order or on the date the child is
placed in the care of the prospective adoptive parent, whichever is the earlier.
Adoption benefits are 66% of the earnings of the contributor at the date of the appli-
5
cation for benefits (s 12(3)(cB) ). Regard must be had to any adoption leave paid to the
contributor in terms of any law, collective agreement or a contract of employment when
calculating adoption benefits. The benefits may not be more than the remuneration the
employee would have earned had he been at work (s 27(4)). The “top-up” principle once
again applies.
The following additional conditions will apply once the Labour Laws Amendment Act
comes into operation: for the purposes of adoption benefits, the maximum period of adop-
tion leave is ten consecutive weeks (new s 27(5)); and, a contributor must have been in
employment, whether as a contributor or not, for at least 13 weeks before the date the
application is submitted (new s 27(6)).
In terms of the still applicable section 28(2) an application for adoption benefits must be
made in the prescribed form within six months from the date of the adoption order and
condonation may be granted for a late application. Once the amendments take effect the
application must be lodged within 12 months after the date of the adoption order or the
date the child has been placed in the care of the prospective adoptive parent, whichever
date is the earlier.
A claims officer must consider the application. If it complies with all the prescripts, the
application will be approved and payment will be authorised (s 28(4)). An application that
is non-compliant must be brought, in writing, to the attention of the applicant (s 28(5)).
Adoption benefits are paid at the employment office where the application was made or
at another employment office if so directed by the applicant at the time of the application
(s 29).
5.5.8 Commissioning parental benefits

The right to commissioning parental benefits is another new right that has been introduced
by the Labour Laws Amendment Act of 2018. It finds no application yet as the Amendment
6
Act has not come into operation.
________________________
4 This requirement is new and introduced by the Labour Laws Amendment Act of 2018. Because said Act
has not come into operation yet, this requirement does not find any application as yet.
5 Not yet in operation.
6 As at the date of going to print (June 2019).
Once the Amendment Act takes affect new sections are inserted in the UIA. The new
sections 29A–29C (Part EA of Chapter 3) govern commissioning parental benefits.
A contributor who is a commissioning parent in

a surrogate motherhood agreement is entitled to
commissioning parental leave of ten consecutive
weeks and may then claim commissioning par-
COMMISSIONING ental benefits if the following conditions are
PARENTAL met:
BENEFITS • if the child has been born as a result of a sur-
(s 29A) rogate agreement as envisaged in the Chil-
dren’s Act;
• if the period absent from work was spent
caring for the child;
• if the contributor was in employment for at
least 13 weeks prior to the application for
benefits (whether having contributed to the
Fund or not);
prescripts of Part EA of the UIA;
Only one contributor of the commissioning par-
ents (if there are two) is entitled to the commis-
sioning parental benefits. The other parent may
apply for parental benefits.
The entitlement to commissioning parental leave commences on the date the child is born
(s 29A(2)).
Application for commissioning parental benefits must be made in the prescribed form
within 12 months after the date of childbirth (s 29B(2)). A claims officer will consider the
application and may require additional information. If the application is compliant, the
application will be approved and payment will be authorised (s 29B(4)). If the application
is defective, the applicant must be advised accordingly in writing (s 29B(5)).
Commissioning parental benefits is 66% of the contributor’s earnings as at the date of
the application, subject to the threshold (s 12(3)(cC)). In calculating the benefits the con-
tributor is entitled to, regard must be had to any commissioning parental leave that was
paid in terms of any law, collective agreement or a contract of employment. The benefits
may not be more than the remuneration the contributor would have received if he had not
been on commissioning parental leave (s 29A(3)).
Payment of the benefits is made at the labour office where application was made or at
any other labour office if so directed by the applicant at the time of the application (s 29C).
5.5.9 Dependants’ benefits

The provisions relating to dependants’ benefits are contained in Part F of Chapter 3 of the
UIA (ss 30–32).
• The surviving spouse or life partner of a de-

ceased contributor is entitled to dependant’s
benefits if application is made in the pre-
scribed manner and within 18 months of the
BENEFITS TO
death of the contributor.
DEPENDANTS
(s 30) • If there is no surviving spouse or life partner
or the spouse or partner has not submitted an
application within 18 months, any dependent
child is entitled to dependant’s benefits and
may apply in the prescribed manner.
• If there is no surviving spouse, life partner or
dependent children any nominated benefi-
ciary of the deceased contributor may claim
benefits.
The benefit payable to a dependant is the amount of the unemployment benefit that would
have been payable to the deceased contributor if he had been alive (s 30(3)).
An application for dependant’s benefits must be made in the prescribed manner within
18 months after the contributor’s death or, where a dependent child applies for benefits,
within 14 days after the expiration of the 18-month period during which the spouse or life
partner could have applied (s 31(2)).
A claims officer will consider the application and, if compliant, will approve the appli-
cation and authorise payment (s 31(4)). An applicant must be advised, in writing, if the
application is defective (s 31(5)).
Benefits are paid at the labour office where the application was made or any other labour
office, as directed by the applicant at the time of the application (s 32).
5.5.10 General provisions relating to benefits

Benefits may not be assigned, attached by an order of any court (except by a court order
relating to maintenance) or set off against any debt (s 33(1)). “Debt” does not include a
debt arising from benefits paid in error under the provisions of the UIA (s 33(2)).
Contributors or dependants who have been paid benefits that they are not entitled to or
paid benefits in excess of their entitlement must repay such benefits to the Fund (s 35(1)).
If the Unemployment Insurance Commissioner determines that a person has been paid
benefits in error or in excess of his entitlement, the Commissioner must, within 18 months
of the date of the determination, make a written demand for repayment (s 35(2)). Such a
written demand must include a statement of the amount paid in error, an explanation as to
why that person was ineligible to receive the funds and evidence that the person to whom
the demand is addressed actually received the funds (s 35(3)). The person in question must
refund the amount within 90 days of the written demand (s 35(4)).
5.6 Dispute resolution (ss 36A & 37)

The Unemployment Insurance Board must establish regional appeal committees to deal
with appeals lodged by persons aggrieved by the decisions of the Unemployment Insurance
Commissioner or claims officers. A regional appeals committee is composed of an officer of
the Department and at least one representative each from organised labour, organised busi-
ness and organisations of community and development interests (s 36A).
Any person who is entitled to benefits in terms of the UIA may appeal to a regional
appeals committee against a decision of the Commissioner to suspend his right to benefits or
a decision of a claims officer relating to the payment or non-payment of benefits (s 37(1)).
If the person is dissatisfied with the decision of the regional appeals committee he may
lodge a further appeal to the National Appeals Committee (also established by the Board)
for a final decision. The National Appeals Committee may confirm, vary or rescind the
decision of a regional appeals committee or it may substitute that decision with a decision it
deems appropriate (s 37(4)).
5.7 Enforcement
Prior to the 2016 amendments to the UIA, the UIA itself empowered labour inspectors to
monitor and enforce compliance by employers. A labour inspector had the power to secure
a written undertaking from an employer (s 38) or to issue a compliance order (s 39). An
employer was permitted to object to a compliance order (s 40) and the Director General
had the power to refer a compliance order to the Labour Court to have it made an order of
court (s 41).
The sections in the UIA dealing with enforcement (ss 38–41) were repealed when the
2016 amendments came into operation in January 2017 and enforcement of the UIA and
other Acts is now found in the BCEA (whereas previously the BCEA provided for enforce-
ment of only the BCEA). Sections 64, 68 and 69 of the BCEA allow labour inspectors to
monitor and enforce not only the BCEA, but also the UIA, Unemployment Insurance Con-
tributions Act and the National Minimum Wage Act and remove the ultimate enforcement
from the realm of the Labour Court.
Section 68 of the BCEA provides for written undertakings. Where a written undertaking
has been secured and the employer fails to comply with the undertaking, a labour inspector
may refer such failure to the CCMA and apply to have the undertaking made an arbitration
award.
Section 69 of the BCEA permits a labour inspector to issue a compliance order and in
the event that the employer fails to comply with the order, the inspector may refer the
matter to the CCMA to have the compliance order made an arbitration award (ss 69 & 73 of
the BCEA). An employer has the right to object to a compliance order by referring a dis-
pute to the CCMA (s 69(5) of the BCEA).
Refer to Chapter 3 of this publication for a detailed discussion of inspectors and their
powers to monitor and enforce compliance by employers.
5.8 Duties of employer (ss 42 & 56)

An employer must ensure that all statements and other information which must be kept
and submitted in terms of the UIA are correct (s 42).
Every new employer must, as soon as it commences activities as an employer, provide the
following information regarding its employees to the Unemployment Insurance Commis-
sioner, irrespective of the earnings of the employees (s 56(1) & (2)):
• the street address of the business and any of its branches;
• if the employer is not resident in the Republic or is a body corporate not registered in
the Republic, the particulars of the authorised person who is required to carry out the
duties of the employer in terms of the UIA;
• the names, identification numbers and monthly remuneration of each of its employees;
and
• the address at which the employee is employed.
All employers are required to advise the Commissioner, before the seventh day of each
month, of any changes in the information initially provided (s 56(3)).
As soon as a new employee is appointed, the employer is obliged to register that employee
with the Department of Labour for the purposes of unemployment and other benefits.
5.9 Miscellaneous
Recovery of losses: if an employee of the Fund causes any loss or damage to the Fund, the
Director General may institute an enquiry into the loss or damage, determine whether the
employee is liable for the loss or damage and, if so, determine the amount of the loss or
damage and how and when the amount is to be paid by the employee. The employee must
be notified in writing of such a determination. Such an amount may be deducted from the
employee’s salary upon termination of services. Any employee who is aggrieved by a deter-
mination made by the Director General may, within 30 days of the date of notification,
appeal to the Minister in accordance with the grievance procedure applicable to state
employees (s 60).
Any person who causes any loss or damage to the Fund is guilty of an offence. Upon con-
viction, a court may determine the amount of the loss or damage and the convicted person
must refund the loss to the Fund on such terms and conditions as the Director General may
determine. Payment in instalments is permissible. A loss due to a fraudulent claim may be
recovered from any outstanding benefit payments due to a contributor or dependant
(s 61).
Evidence (s 62): the following documents produced in a court of law are presumed to be
certified by their author without proof of the author’s signature, unless evidence is led to
the contrary: a record of a decision made by the Director General, the Board or any com-
mittee; a copy of or extract from an entry in any book or record kept by the Director Gen-
eral, the Board or any committee or any document filed with the Director General, the
Board or any committee.
In any proceedings under the UIA an affidavit purporting to be made by the Director
General is evidence of any of the following facts stated in the affidavit: that any person or
body of persons is an employer or a contributor under the UIA; that any person is or was
lawfully required to pay an amount to the Director General or that any such amount or any
portion thereof had or had not been paid on a date specified in the affidavit.
The presiding officer at proceedings in which such an affidavit is presented may of his
own accord or must at the request of any party to the proceedings require the deponent
under subpoena to give oral evidence or to answer any written question submitted to the
presiding officer under oath. Any question and answer from that deponent is admissible as
evidence in the proceedings.
A contributor is presumed, unless the contrary is proved, to remain in the employ of an
employer until that employer has notified the Director General that the contributor is no
longer employed.
In any proceedings the following documents are admissible in evidence against an em-
ployer and constitute an admission of the facts contained therein, unless it is proved that
the statement was not made by the employer: a statement or entry contained in any book,
record or document kept by any employer; any such statement or entry found on any prem-
ises occupied by the employer; any such statement or entry found on any vehicle used in
the business of the employer and any copy or reproduction of any such statement or entry,
certified by a commissioner of oaths to be a true copy or reproduction of the original
statement.
No answer to any question put by a person in the course of an enquiry instituted by the
Director General to determine whether an employee of the Fund has caused a loss or dam-
age to the Fund or a question by a labour inspector may be used against that person in any
criminal proceedings, except proceedings in respect of a charge of perjury or making a
false statement.
5.10 Unemployment Insurance Contributions Act 4 of 2002

Unlike the old Act, the UIA of 2001 does not address the issue of contributions to the
Unemployment Insurance Fund. The Unemployment Insurance Contributions Act (UICA)
was implemented alongside the UIA to provide for contributions by employers and
employees.
Application
The UICA applies to all employers and employees with a limited number of exclusions. The
following employers and employees are excluded from the application of the UICA (s 4):
• employees employed for fewer than 24 hours per month and their employers;
• employees in the national and provincial spheres of government who are officers or em-
ployees as defined in section 1(1) of the Public Service Act of 1994 and their employers;
• the President, Deputy President, a Minister, Deputy Minister, a member of the National
Assembly, a permanent delegate to the National Council of Provinces; a Premier, a mem-
ber of an Executive Council or a member of a provincial legislature; and
• members of a municipal council, traditional leaders, members of a provincial House of
Traditional Leaders and members of the Council of Traditional Leaders.
Contributions
Chapter 2 of the UICA deals with the duty to contribute to the Unemployment Insurance
Fund.
Every employer and every employee to whom the UICA applies must, on a monthly basis,
make contributions for the benefit of the Unemployment Insurance Fund. The contribu-
tions must be paid by the employer to the Commissioner for the South African Revenue
Service (SARS) or to the Unemployment Insurance Commissioner, depending on whether
section 8 or section 9 is applicable to the employer (s 5).
The amount of the contribution payable by the employee is 1% of his monthly remuner-
ation and that payable by the employer is 1% of the employee’s monthly remuneration
(s 6). This provision is not applicable to that portion of an employee’s monthly remuner-
ation that exceeds the threshold amount determined by the Minister of Finance (in con-
sultation with the Minister of Labour and the Unemployment Insurance Commissioner).
Currently this amount is R17 712 per month.
The employer must deduct the 1% payable by the employee from the employee’s re-
muneration every month (or week or other interval at which remuneration is paid) (s 7(1)
& (2)). An employer who fails to deduct the contributions is liable for the contributions
(s 7(4)). Where the contribution of an employee which is a company (other than a listed
company) has not been paid over to SARS or to the Unemployment Insurance Commis-
sioner, the employer and all its directors and shareholders who control or are regularly
involved in the management of the company’s overall financial affairs will be personally
liable for the payment of that amount, as well as for the penalty which may be imposed in
respect of the late payment (s 7(4A)).
An employer is not allowed to deduct amounts that are in excess of what the employee’s
contribution is supposed to be, seek or receive a fee from the employee for complying with
the Act or deduct arrear contributions from the employee after the end of the financial
year in which it was payable (s 7(3)).
Where an employer deducts a contribution from the employee’s remuneration and sub-
sequently becomes aware that the amount was not due or payable or was in excess of the
required amount, the employer must refund such amount to the employee, despite the fact
that the employer was not refunded by the Commissioner (s 7(5)).
Payments to the SARS Commissioner (s 8)

Every employer, other than an employer contemplated in section 9(1) (see below), must
pay to the Commissioner of SARS, on a monthly basis, the total amount of contributions
deducted from its employees and the employer’s own contributions. Payment to SARS must
be made before the seventh day of the month following the deductions (or such longer
period as SARS may determine) and must be accompanied by a return statement, reflecting
the amount of the payment (s 8(1) & (2)). An employer who is a micro business is allowed
some latitude and must make payment in accordance with the Sixth Schedule to the
Income Tax Act (s 8(1A)).
Any amount in excess of what an employer is supposed to pay to SARS must be refunded
and the Commissioner of SARS must advise the Director General of such refunds (s 8(4)).
An employer who ceases to carry on business or otherwise ceases to be an employer must,
within 14 days, notify the SARS Commissioner thereof and submit such a return as the
Commissioner may prescribe.
The contributions, interest and penalties collected by the SARS Commissioner are, after
deduction of any refunds, paid into the National Revenue Fund for the credit of the
Unemployment Insurance Fund (s 11).
Payments to the Unemployment Insurance Commissioner (s 9)

For the purpose of this section “employer” means an employer who:
• is not required to register as an employer in terms of paragraph 15 of the Fourth Sched-
ule to the Income Tax Act;
• has not registered voluntarily as an employer in terms of the Fourth Schedule to the
Income Tax Act; or
• is not liable for the payment of the skills development levy in terms of the Skills Develop-
ment Levies Act of 1999 (s 9(1)(a)).
Such an employer is required to pay all contributions directly to the Unemployment Insur-
ance Commissioner and not to SARS before the seventh day of the month following the
deductions (s 9(1)(b)). All payments must be accompanied by return statements to reflect
the amount of contributions and the total of the payment (s 9(2)).
Where an employer on reasonable grounds believes that the total amount of contribu-
tions payable during any financial year will not exceed such amount as the Commissioner
may from time to time determine by notice in the Gazette, the employer may elect to effect
payment of the full amount in respect of that financial year in a single payment within
seven days after the beginning of that financial year (i.e. March of every year) (s 9(5)(a)). If
the employer discovers that the amount so paid was less than the required amount, the
outstanding amount must be paid to the Unemployment Insurance Commissioner before
the end of the financial year in question (s 9(5)(b)).
All contributions, interest and penalties are paid into the Fund after refunds to employ-
ers of any excess amounts (s (9(3) & (4)).
Questions
Question 1
Discuss the conditions or requirements which must be met in terms of the Unemployment
Insurance Act in order for a contributor to qualify for the following:
1.1 unemployment benefits; (10)
1.2 illness benefits; (8)
1.3 maternity benefits; (8)
1.4 parental benefits; (8)
1.5 adoption benefits; (8)

1.6 commissioning parental benefits; (8)
1.7 benefits paid to dependants of a deceased contributor. (6)
Question 2
Discuss the responsibility for making contributions for the benefit of the UIF, the amount
of such contributions and how the contributions must be made in terms of the Unemploy-
ment Insurance Contributions Act. (15)
Question 3
Lorraine is employed by R & B Manufacturers (Pty) Ltd, a manufacturer of women’s
clothing. She works as a dressmaker in the factory and earns R8 000 per month.
3.1 Is Lorraine liable to contribute to UIF? Briefly explain. (2)
3.2 Assume Lorraine is a contributor in terms of the UIA. Two weeks ago she was re-
trenched and is now unemployed. She applies for unemployment benefits. Two days
after submitting her application to a claims officer she discovers, when visiting her
doctor, that she is suffering from a terminal illness, that her health will rapidly deteri-
orate and that she only has eight months to live. Does she qualify for unemployment
benefits under these circumstances? Explain. (4)
3.3 Assume Lorraine is a contributor. She has been employed at R & B Manufacturers for
the past five years. She is pregnant and the expected date of birth of her baby is
12 October. No provision has been made for paid maternity leave, either in her con-
tract of employment or any agreement applicable in the workplace.
(a) Briefly explain whether Lorraine is entitled to work during her term of preg-
nancy. (2)
(b) Her employer grants her four months’ unpaid maternity leave. Explain whether
she qualifies for benefits in terms of the UIA. (4)
(c) Lorraine is married to John who was also a contributor to the Fund, but is
unemployed at the time of her maternity leave. Can he apply for parental
leave? Motivate your answer. (4)
(d) Lorraine has always been considered a good worker. When her employer finds
out about her pregnancy, he dismisses her because, according to him, he can-
not afford to keep her job for her.
(i) Does she qualify for benefits under these circumstances? Explain. (4)
(ii) Can her employer dismiss her in these circumstances? Discuss with ref-
erence to case law. (10)
Hint: See Swart v Greenmachine Horticultural Services (A Division of Sterikleen (Pty) Ltd)
(2010) 31 ILJ 180 (LC); Wallace v Du Toit (2006) 27 ILJ 1754 (LC); Mashava v Cuzen
& Woods Attorneys [2000] 6 BLLR 691 (LC); Victor v Finro Cash & Carry (2000) 21 ILJ
2489 (LC); Solidarity obo McCabe v SA Institute for Medical Research [2003] 9 BLLR 927
(LC); Mnguni v Gumbi [2004] 6 BLLR 558 (LC); Lukie v Rural Alliance CC t/a Rural
Development Specialist [2004] 8 BLLR 769 (LC); and ss 186(1)(c) & 187(1)(e) of the
Labour Relations Act.
3.4 Assume that Lorraine is a contributor. She adopts a baby of three months. As a result
of the adoption she resigns because she wants to take care of her baby. Does she qual-
ify for benefits in terms of the Act? Explain. (10)
3.5 Assume that Lorraine is a contributor. She is dismissed because she has been found
guilty of theft. After her dismissal she fails to find other employment. Does she qualify
for benefits in terms of the Act? Explain. (5)
3.6 Assume that Lorraine is a contributor. She is unemployed because of retrenchments

in her factory. She applies for unemployment benefits and is informed that she quali-
fies for benefits and will receive these benefits shortly. A week later she is informed of
suitable employment, but refuses to accept it. Does she qualify for benefits in terms of
the Act? Explain. (3)
3.7 Assume Lorraine is a contributor. She is unemployed because of retrenchments in
her factory. She applies for unemployment benefits and is informed that she does not
qualify for any benefits in terms of the Act. Explain the procedure Lorraine can fol-
low to have her dispute resolved. (4)
Question 4
Fred is a gardener. He works for Anton on Mondays, Bennie on Tuesdays, Carl on Wednes-
days, Danny on Thursdays and Ewan on Fridays. Danny dismisses Fred. Is Fred eligible for
unemployment benefits from the Fund? (4)
Question 5
John is employed at Viva Enterprises. He develops pneumonia and becomes too ill to
perform any work. He stays at home for 12 days. Does he qualify for illness benefits in terms
of the Unemployment Insurance Act? Explain. (6)
Question 6
David and his life partner, Richard, adopt a baby of 11 months old. David is employed at
Bakerton Industries. Richard is unemployed due to retrenchments in his factory. Explain
whether one or both of them are entitled to leave and, if so, whether they will qualify for
any benefits under the UIA. (5)
Question 7
Mandla and Lerato commissioned Ms X to be a surrogate mother for a baby they wanted.
After the birth of the baby they took leave to care for the child. Explain whether one or
both of them are entitled to leave and benefits under the UIA. (5)
Appendix 1
UI-2.1
UNEMPLOYMENT INSURANCE BENEFITS IN TERMS OF SECTION 17(1) –
Read with Regulation 3(1)
1. PERSONAL DETAILS
1.1 Identity document ............................................................................................................
1.2 Passport number ...............................................................................................................
1.3 Other Identity/Reference number ..................................................................................
1.4 Date of birth ......................................................................................................................
1.5 Gender Male 5 Female 0
1.6 First names ........................................................................................................................
1.7 Surname ............................................................................................................................
1.8 Previous surname ..............................................................................................................
1.9 Postal address ....................................................................................................................
......................................................................................... Code ......................................
1.10 Residential address ...........................................................................................................
......................................................................................... Code ......................................
1.11 Telephone number ........................................................ Code ......................................
1.12 Cell. no. .............................................................................................................................
1.13 E-mail address ...................................................................................................................
1.14 SARS number ....................................................................................................................
2. PAYMENT DETAILS
2.1 Name of bank or post office .............................................................................................
2.2 Branch code ......................................................................................................................
2.3 Account number ...............................................................................................................
2.4 Account type .....................................................................................................................
3. METHOD OF PAYMENT (Use the UI-2.7 form for Banking Details)
CHEQUE CASH BANK TRANSFER OTHER
4. EDUCATION BACKGROUND (tick the box) ........................................................................
SPECIAL SCHOOL CERT. 26 BELOW GRADE 8 29
GRADE 8–9 30 GRADE 10–11 31
GRADE 12 32 TERTIARY 33
5. EMPLOYER DETAILS
5.1 Name of employer/company ...........................................................................................
5.2 UIF ref. number ................................................................................................................
5.3 Business address of employer ...........................................................................................
............................................................................................................................................
5.4 Postal address ....................................................................................................................
5.5 E-mail .................................................................................................................................
5.7 Fax number .......................................................................................................................
6. EMPLOYMENT DETAILS
6.1 Occupation ........................................................................................................................
6.2 Occ. code ...........................................................................................................................
7. PERIOD OF SERVICE
7.1 Commencement of employment with employer ............................................................
7.2 Termination of service ......................................................................................................
8. REMUNERATION/SALARY
8.1 Gross pay (before deductions) .........................................................................................
8.2 Salary payment (PW or PM) .............................................................................................
9. SOURCES OF OTHER INCOME
During this period of unemployment have you received income from any of these sources?
(Tick the box)
9.1 Monthly pension from State (excluding disability grant) ........................................
9.2 Benefit from Compensation Fund for temporary or total disablement ..................
9.3 Benefits from an Unemployment Fund established by bargaining or statutory
council .........................................................................................................................
9.4 None ............................................................................................................................
When did you begin to receive this benefit? ...................................................................
Do you continue to receive this benefit? .........................................................................
If you no longer receive this benefit when did it come to an end? ................................
10. REASONS FOR TERMINATION OF SERVICE
10.1 Dismissed ...........................................................................................................................
10.2 Contract expired ..............................................................................................................
10.3.1 Resigned .............................................................................................................
10.3.2 Constructive dismissal .......................................................................................
10.4 Employer’s insolvency ......................................................................................................
10.5 Other (Specify) ................................................................................................................
11. FURTHER REQUIREMENTS
11.1 Are you registered as a workseeker with a Labour Centre established by the
DOL .............................................................................................................. Yes No
11.2 If so, which Labour Centre: .............................................................................................
11.3 Are you capable or and available for work? ............................................... Yes No
Signature .......................................................
11.4 If you are not capable or nor available for work, please explain ...................................
............................................................................................................................................
IMPORTANT: READ THIS SECTION BELOW:
If your application is successful then the claims officer will authorise the payment of benefits. You must
report to the employment office on a regular basis as indicated by the claims officer. You must also inform
the claims officer as soon as you resume employment. I declare that the above information is true and cor-
rect. I understand that it is an offence to make a false statement.
Signature of applicant ................................................................ Date ............... / ............... / ...............

UI-2.2
APPLICATION FOR ILLNESS BENEFITS IN TERMS OF SECTION 22(1)
Read with Regulations 4(1), 4(5) and 4(7)
1. PERSONAL DETAILS
1.2 Passport number ...............................................................................................................
1.3 Other Identity/Reference number ..................................................................................
1.4 Date of Birth ......................................................................................................................
1.6 First names ........................................................................................................................
1.7 Surname ............................................................................................................................
1.9 Postal address ....................................................................................................................
......................................................................................... Code ......................................
......................................................................................... Code ......................................
1.12 Cell. no. .............................................................................................................................
1.13 E-mail address ...................................................................................................................
1.14 SARS number ....................................................................................................................
2. PAYMENT DETAILS
2.2 Branch code ......................................................................................................................
2.3 Account number ...............................................................................................................
2.4 Account type .....................................................................................................................
4. EMPLOYER DETAILS
4.2 UIF ref. number ................................................................................................................
............................................................................................................................................
4.4 Postal address ....................................................................................................................
4.5 E-mail .................................................................................................................................
4.7 Fax number .......................................................................................................................
5.1 Occupation ........................................................................................................................
5.2 Occ. code ...........................................................................................................................

(Tick the box)
8.1 Monthly pension prom State (excluding disability grant) ........................................
8.2 Benefit from Compensation Fund for temporary or total disablement ...................
council ..........................................................................................................................
8.4 None .............................................................................................................................
............................................................................................................................................
9. ARE YOU STILL EMPLOYED .............................................................................. Yes No
NB: IF YOU ARE STILL EMPLOYED, FORM UI-2.8 MUST ALSO BE COMPLETED.
10. DATE OF COMMENCEMENT OF ILLNESS LEAVE .................................. /......... /.............
11. IF YOU HAVE RETURNED TO WORK, STATE DATE .............................. /......... /.............
12.
MEDICAL CERTIFICATE (To be completed by an authorised practitioner in terms of
section 20(1)(c) of the UI Act 63 of 2001.
I, ................................................................. am a qualified .....................................................
My practice number is ............................... . I confirm that .....................................................
has been under my treatment from ............................. to .................. and is suffering from
.....................................................................................................................................................
........................................................................... . This patient was not capable of performing
work from .............................................................. to .............................................................
If the nature of the illness is described in this medical certificate in uncertain terms or as
“disease – entity” or “symptom complex”, please furnish a clinical report describing the
symptoms and nature of the complaint.
Signature ...................................................... Date ................... Tel. no. ..............................

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

inform the claims officer as soon as you resume work. I declare that the above information is true and
correct. I understand that it is an offence to make a false statement.
SIGNATURE ...................................................................................... DATE ......................................

UI-2.3
APPLICATION FOR MATERNITY BENEFITS IN TERMS OF SECTION 25(1)
Read with Regulation 5(1) and 5(4)
1. PERSONAL DETAILS ...............................................................................................................
1.2 Passport number ...............................................................................................................
1.3 Other identity/reference number ...................................................................................
1.4 Date of birth ......................................................................................................................
1.6 First names ........................................................................................................................
1.7 Surname ............................................................................................................................
1.9 Postal address ....................................................................................................................
......................................................................................... Code .......................................
......................................................................................... Code .......................................
1.11 Telephone number ........................................................ Code .......................................
1.12 Cell. no. .............................................................................................................................
1.13 E-mail address ...................................................................................................................
1.14 SARS number ....................................................................................................................
2. PAYMENT DETAILS .................................................................................................................
2.2 Branch code ......................................................................................................................
2.3 Account number ...............................................................................................................
2.4 Account type .....................................................................................................................
3. METHOD OF PAYMENT (Use the UI-284 form for Banking Details)
4. EMPLOYER DETAILS
4.2 UIF ref. number ................................................................................................................
............................................................................................................................................
4.4 Postal address ....................................................................................................................
4.5 E-mail .................................................................................................................................
4.6 Telephone number ........................................................ Code .......................................
4.7 Fax number .......................................................................................................................
5.1 Occupation ........................................................................................................................
5.2 Occ. code ...........................................................................................................................
During this period of unemployment have you received income from any of these sources? (Tick the box)
council .........................................................................................................................
8.4 None ............................................................................................................................
9. ARE YOU STILL EMPLOYED ................................................................................. Yes No
10. DATE OF COMMENCEMENT OF MATERNITY LEAVE ........................./ ........... /.............
11. IF YOU HAVE RETURNED TO WORK, STATE DATE ............................/ ........... /.............
12.
MEDICAL CERTIFICATE (to be completed by a medical practitioner or registered mid-
wife)
I, ................................................................. am a qualified .....................................................
My practice number is ............................... . I confirm that .....................................................
................................................... is under my treatment and is pregnant. The expected due
date of birth is ............................................................................................................................
OR
I confirm that ................................................................. gave birth on ................................ /
The baby was stillborn on .............................. /had a miscarriage on ....................................
Signature ...................................................... Date.................... Tel. no. ..............................

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

also inform the claims officer as soon as you resume employment. I declare that the above information is
true and correct. I understand that it is an offence to make a false statement.
SIGNATURE OF APPLICANT ....................................................................... DATE ............................

UI-2.4
APPLICATION FOR ADOPTION BENEFITS IN TERMS OF SECTION 28(1)
1. PERSONAL DETAILS
1.2 Passport number ...............................................................................................................
1.4 Date of birth ......................................................................................................................
1.6 First names ........................................................................................................................
1.7 Surname ............................................................................................................................
1.9 Postal address ....................................................................................................................
......................................................................................... Code ......................................
......................................................................................... Code ......................................
1.12 Cell. no. .............................................................................................................................
1.13 E-mail address ...................................................................................................................
1.14 SARS number ....................................................................................................................
2. PAYMENT DETAILS
2.2 Branch code ......................................................................................................................
2.3 Account number ...............................................................................................................
2.4 Account type ......................................................................................................................
4. EMPLOYER DETAILS
4.2 UIF ref. number ................................................................................................................
............................................................................................................................................
4.4 Postal address ....................................................................................................................
4.5 E-mail .................................................................................................................................
4.7 Fax number .......................................................................................................................
5.1 Occupation ........................................................................................................................
5.2 Occ. Code ..........................................................................................................................
(Tick the box)
council .........................................................................................................................
8.4 None ............................................................................................................................
9. ARE YOU STILL EMPLOYED ................................................................................ Yes No
10. DATE OF COMMENCEMENT OF ADOPTION LEAVE .........................../ ........... / .............
11. IF YOU HAVE RETURNED TO WORK, STATE DATE ............................./ ........... / .............
also inform the claims officer as soon as you resume employment. I declare that the above information is
true and correct. I understand that it is an offence to make a false statement.
SIGNATURE .................................................................................................. DATE ..........................

UI-2.5
APPLICATION FOR DEPENDANT’S BENEFITS BY SURVIVING SPOUSE OR
LIFE PARTNER IN TERMS OF SECTION 31(1)
1. PERSONAL DETAILS
1.2 Passport number ...............................................................................................................
1.4 Date of birth ......................................................................................................................
1.5 Date of death .....................................................................................................................
1.7 First names ........................................................................................................................
1.8 Surname ............................................................................................................................
1.10 Last residential address ....................................................................................................
.................................................................................................... Code ...........................
1.11 Telephone number ................................................................... Code ...........................
1.12 Cell. no. .............................................................................................................................
1.13 E-mail address ...................................................................................................................
1.14 SARS number ....................................................................................................................
2. EMPLOYER DETAILS
2.2 UIF ref. number ................................................................................................................
............................................................................................................................................
2.4 Postal address ....................................................................................................................
2.5 E-mail .................................................................................................................................
2.7 Fax number .......................................................................................................................
3.1 Occupation ........................................................................................................................
3.2 Occ. code ...........................................................................................................................
6. PERSONAL DETAILS OF SPOUSE OR LIFE PARTNER
6.1 Identity document: ...........................................................................................................
6.2 Passport number ...............................................................................................................
6.4 Date of birth ......................................................................................................................
6.6 First names ........................................................................................................................

6.7 Surname ............................................................................................................................
6.9 Postal address ....................................................................................................................
.................................................................................................... Code ...........................
.................................................................................................... Code ...........................
6.12 Cell. no. .............................................................................................................................
6.13 E-mail address ...................................................................................................................
6.14 SARS number ....................................................................................................................
7. PAYMENT DETAILS
7.2 Branch code ......................................................................................................................
7.3 Account number ...............................................................................................................
7.4 Account type .....................................................................................................................
CHEQUE BANK TRANSFER OTHER
I declare that I am the only surviving spouse or life partner or one of surviving spouses of the above-
mentioned deceased contributor, that I was not divorced from him/her and that information given in this
document is true and correct. I understand that it is an offence to make a false statement.
SIGNATURE OF SURVIVING SPOUSE OR LIFE PARTNER ................................................................

DATE: ............... / ............. / ..............
UI-2.6
APPLICATION FOR DEPENDANT’S BENEFITS BY CHILD OF DECEASED
IN TERMS OF SECTION 31(1)
Read with Regulation 7(1) and 7(2)
1. PERSONAL DETAIL
1.1 Identity document: ...........................................................................................................
1.2 Passport number ...............................................................................................................
1.4 Date of birth ......................................................................................................................
1.5 Date of death .....................................................................................................................
1.7 First names ........................................................................................................................
1.8 Surname ............................................................................................................................
1.10 Last residential address .....................................................................................................
......................................................................................... Code ......................................
1.12 Cell. no. .............................................................................................................................
1.13 E-mail address ...................................................................................................................
1.14 SARS number ....................................................................................................................
2. EMPLOYER DETAILS
2.2 UIF ref. number ................................................................................................................
............................................................................................................................................
2.4 Postal address ....................................................................................................................
2.5 E-mail .................................................................................................................................
2.6 Telephone number ............................................................................... Code ...............
2.7 Fax number .......................................................................................................................
3.1 Occupation ........................................................................................................................
3.2 Occ. code ...........................................................................................................................
6. GUARDIAN’S PERSONAL DETAILS
RELATIONSHIP OF GUARDIAN TO DECEASED ................................................................
6.2 Passport number ...............................................................................................................
6.4 Date of birth ......................................................................................................................

6.6 First names ........................................................................................................................
6.7 Surname ...........................................................................................................................
6.8 Previous surname .............................................................................................................
6.9 Postal address ...................................................................................................................
.......................................................................................... Code .....................................
.......................................................................................... Code .....................................
6.11 Telephone number ........................................................ Code .....................................
6.12 Cell. no. ............................................................................................................................
6.13 E-mail address ...................................................................................................................
6.14 SARS number ...................................................................................................................
7. CHILD’S DETAILS (1)
7.2 Date of birth .....................................................................................................................
7.4 First names ........................................................................................................................
7.5 Surname ...........................................................................................................................
7.6 Postal address ...................................................................................................................
.......................................................................................... Code .....................................
.......................................................................................... Code .....................................
8. PAYMENT DETAILS OF GUARDIAN*
8.1 Name of bank or post office ............................................................................................
8.2 Branch code* ...................................................................................................................
8.3 Account number ..............................................................................................................
8.4 Account type .....................................................................................................................
9. METHOD OF PAYMENT: (Use the UI-2.7 form for Banking Details)
CHEQUE BANK TRANSFER OTHER
I declare that the information is true and correct. I understand that it is an offence to make a false state-
ment.
SIGNATURE OF APPPLICANT: ....................................................... DATE: .....................................

UI-12
NOTICE OF APPEAL AGAINST A DECISION OF
THE COMMISSIONER OR A CLAIMS OFFICER
[UI-12 amended by GN 536, 26 April 2004.]
Application in terms of section 37(1) read with regulation 8(1)
A person entitled to benefits in terms of the Act may appeal against a decision of the Commis-
sioner to suspend that person’s rights to benefits, or a decision of a claim officer relating to the
payment or non-payment of benefits. This Notice of appeal must be send to the Regional Appeal
Committee, where an application was lodged.
1. Personal details
1.1 Name ..................................................................................................................................
1.2 ID number: ........................................................................................................................
1.3 Passport number ...............................................................................................................
1.5 Postal address ....................................................................................................................
1.6 E-Mail address ...................................................................................................................
1.7 Tel. number (include the code) ......................................................................................
1.8 Cell. no. .............................................................................................................................
2. Employer details
2.1 Name of employer (prior to unemployment) .................................................................
2.2 UIF reference number ......................................................................................................
2.3 Physical address .................................................................................................................
2.4 Postal address ....................................................................................................................
2.5 E-mail .................................................................................................................................
2.6 Tel number ........................................................................................................................
2.7 Fax number .......................................................................................................................
3. Decision appealed against
3.1 What decision are you appealing against?
............................................................................................................................................
3.2 Which region made the decision?
............................................................................................................................................
3.3 When was the decision made?
............................................................................................................................................
3.4 When were you notified about the decision?
............................................................................................................................................
3.5 Why are you appealing against the decision?
............................................................................................................................................
3.6 In what respects do you think the decision is incorrect or unfair?
............................................................................................................................................
............................................................................................................................................
............................................................................................................................................
3.7 What outcome do you seek from this Regional appeal?

............................................................................................................................................
............................................................................................................................................
............................................................................................................................................
Signature ................................................................................................... Date ................................
For official purposes

On the ......................................... the Regional Appeal Committee decided that the appeal was
Successful
Unsuccessful because .................................................................................................................
Signature of chairperson ........................................................................ Date ..............................

6
COMPENSATION FOR OCCUPATIONAL
INJURIES AND DISEASES ACT 130 OF 1993
6.1 Introduction
Common law does not provide any security or benefits to an employee who has sustained
injuries on duty. In fact, there is no common law obligation on an employer to pay wages to
an employee who is absent due to illness or injuries. The only recourse the employee has at
common law is to institute civil action against his employer for compensation. This is an
onerous route to follow since the employee will not succeed with a claim unless he can
prove intent or negligence on the part of the employer, i.e. that an act or omission by the
employer was the cause of his injuries.
The first Act to broaden the common law position was the Workmen’s Compensation Act
30 of 1941. This Act provided for the payment of compensation to employees regardless of
whether the employer was the cause of the injuries and regardless of whether the employee
could prove intent or negligence by the employer. Compensation in terms of this Act was
paid in the event of injuries sustained on duty, to dependants of an employee who died
because of such injuries and in the event of industrial diseases. For this purpose the Acci-
dent Fund was established. The loss recoverable in terms of the Act was a material loss
caused by the accident, i.e. loss of income and medical expenses. The employee, however,
did not lose his right to recover compensation from the wrongdoer personally, be it the
employer or a third party.
On 1 March 1994 the Compensation for Occupational Injuries and Diseases Act 130 of
1993 (COIDA) came into operation and the Workmen’s Compensation Act was repealed.
COIDA, like its predecessor, also provides for the payment of compensation in respect of
occupational injuries, death as a result of such injuries and occupational diseases. Both the
repealed Workmen’s Compensation Act and COIDA require that, in order to qualify for
compensation, the injury must have been caused by an accident “arising out of and in the
course of the employee’s employment”. The Workmen’s Compensation Act, however, was
not clear as to how this concept should be interpreted. It was left to the courts to interpret
and develop the concept. COIDA, in section 22(4), describes what is meant by “arisen out
of and in the course of employment”. It appears that the interpretation given to this con-
cept by our courts over the years has now been codified in COIDA.
Another feature of COIDA is that its application is much wider than that of the old
Workmen’s Compensation Act. The definition of “employee” (previously “workman”) has
been extended to include a number of employees who were previously excluded from the
right to and security of compensation, such as casual employees, seamen and airmen. Also
excluded from the application of the old Act were employees who earned more than a
specified amount per year. This exclusion has been removed when COIDA came into oper-
ation, with the result that all employees now receive compensation regardless of their
income, but the amount of compensation is subject to a threshold amount determined by
the Minister. This amount is revised and adapted more or less annually and is at present
167
R458 520 per annum. This means that an employee who earns in excess of the threshold
amount will receive compensation, but the amount of compensation is calculated as is the
employee earned the threshold amount.
“Earnings” of an employee is defined as the monthly rate at which an employee was being
remunerated by his employer at the time of the accident and includes the value of food and
quarters supplied by the employer, as well as any overtime payment or special remuneration
in cash or in kind of a regular nature or for work ordinarily performed. Excluded from
“earnings” are the following: any payment for intermittent overtime; payment for non-
recurrent occasional services; amounts paid by an employer to an employee to cover special
expenses and ex gratia payments (ss 1 & 63).
The Compensation Fund was created in terms of section 15 of COIDA and replaces the
old Accident Fund. It derives its income from contributions by employers and is adminis-
tered by the Director General.
6.2 Application of the Act

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

An employer must register with the Compensation Commissioner (i.e. with the Department
of Labour) and furnish details of the business (s 80). The State, Parliament, provincial
governments and local authorities may be exempted from furnishing such details (ss 80(4)
& 84(1)). Persons who are not resident in South Africa and body corporates which are not
Compensation for Occupational Injuries and Diseases Act 130 of 1993 169
registered in terms of South African law and who carry on business in the Republic must
furnish the Compensation Commissioner with the address of their head office and the
name and address of their chief officer in the Republic. The chief officer is deemed an
employer in terms of the Act (s 80(5)). If a person (the mandator) enters into an agree-
ment with a contractor for the execution of work, the contractor must register as an
employer and fulfil all the duties of an employer (s 89).
An employer is obliged to keep records for a period of four years of all its employees,
wages paid and time worked (s 81). Before the end of March every year a statement
(return) setting out the wages paid to employees must be submitted to the Commissioner
(s 82). On the strength of the information in the return the Director General determines
an amount to be paid by the employer to the Compensation Fund (s 83). The employer
must pay the determined amount within 30 days of a date specified by the Commissioner
(s 86). The State, Parliament, provincial governments, exempted local authorities and
employers who have obtained an insurance policy for the extent of their potential liability
are not required to pay an assessment (s 84).
6.4 Procedure to claim compensation

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

In order to qualify for compensation the following requirements must be met:
• an employer-employee relationship must exist;
• an “accident” must have caused the injuries or death; and
• the accident must have occurred in the “scope of the employee’s employment” i.e. the
accident must have arisen out of and in the course of his employment.
A contract of employment must exist at the time of the acci-

dent – i.e. the employee must be an “employee” as defined
EMPLOYEE
when the accident occurs (s 1).
• The accident must take place suddenly and unexpectedly.

• If the injury or death is the result of an expected and drawn-
ACCIDENT out process, it does not qualify as an accident (Innes v Johan-
nesburg Municipality 1911 TPD 12; Nicosia v Workmen’s Com-
pensation Commissioner 1954 (3) SA 897 (T); Pyper v Man-
chester Liners Ltd 1916 2 KB 691).
• The accident must result in an injury (internal or external)
or death of the employee (ss 1 & 22).
• The accident must take place in the “scope of the employee’s

employment” – i.e. in the nature of the employee’s duties
and in the course of his service (s 1).
• The accident must thus stand in relation to the employee’s
duties (Minister of Justice v Khoza 1966 (1) SA 410 (A).
• The accident occurs in the “scope of employment”:
– if it occurs on the work premises;
– if it occurs while the employee is working;
– if it occurs while the employee is promoting the interests
of his employer, regardless of whether his actions are ille-
SCOPE OF gal or have been prohibited or of whether he has been
EMPLOYMENT given no instruction to perform such actions (s 22(4));
– if it occurs while the employee is being conveyed to or
from work free of charge by his employer in a vehicle
supplied by the employer and driven by the employer (or
one of its employees) (s 22(5));
– if it occurs while the employee, with the consent of his
employer, is receiving training in first aid, rescue work or
other emergency services (s 25);
– if it occurs while the employee is partly promoting his own
interests and partly those of his employer.
• If the employee completely abandons his duties in further-
ance of his own interests, he does not enjoy the protection
provided by COIDA.
6.6 Compensation
No payments will be made in respect of temporary disablement which lasts for three days or
less (s 22(2)). If an accident is the result of the serious and wilful misconduct of an em-
ployee, no compensation is payable, unless the accident results in serious disablement or
death (s 22(3)).
If, at the time of considering a claim for compensation, it appears that the contract of
employment, apprenticeship or learnership of the employee is invalid, the Director General
may deal with the claim as if the contract was valid at the time of the accident (s 27).
When compensation is awarded, the Director General may also decide that the cost of
medical aid or of a medical examination be paid from the Compensation Fund (s 16). If
the injury in respect of which compensation is payable causes disablement of such a nature
that the employee is unable to perform essential actions of life without the constant help of
another person, the Director General may grant an allowance towards the cost of such help
(s 28).
When the Director General determines that the requirements as set out in paragraph 6.5
above have been complied with, compensation will be awarded to the disabled employee or
to the dependants of a deceased employee.
Compensation in each category of disablement is calculated in accordance with a pre-
scribed formula.
6.6.1 Temporary disablement (s 47(1))

Compensation for temporary total disablement is calculated as follows:
75
Periodic payments of × monthly earnings
100
The earnings used as a basis for calculating compensation are subject to a maximum weekly
or monthly income (as prescribed by the Minister). This means that compensation is based
on the weekly or monthly income of the employee. If the employee earns in excess of the
prescribed threshold, the compensation is calculated as if the employee earned the thresh-
old amount. These amounts are revised by the Minister annually.
Temporary disablement lasting longer than 24 months is presumed to be permanent
(s 47(6)).
Compensation for temporary partial disablement consists of such portion of the amount
calculated above as the Director General may consider equitable (s 47(2)).
The employer of an injured employee is liable to pay compensation to the employee for
the first three months after the date of the accident. The amount so paid by the employer
will be refunded to the employer by the Director General (s 47(3)).
6.6.2 Permanent disablement (s 49)

The amount of compensation depends on the degree of disablement.
• 30% disablement
A lump sum of 15 times the employee’s monthly earnings at the time of the accident
(subject to the prescribed maximum per month) is paid in the case of a 30% disability.
• Less than 30% disablement
% of disablement
A lump sum of × monthly earnings × 15
30
The prescribed minima and maxima applicable to 30% disablement are equally applic-
able here.
• 100% disablement
A monthly pension for life is paid equal to 75% of the employee’s monthly earnings,
subject to the prescribed threshold.
• 31% to 99% disablement
A monthly pension for life of
% of disablement 75
× × monthly earnings up to the prescribed maximum
30 100
If an apprentice or a person who is in the process of being trained in a trade is permanently
disabled as a result of an accident, his earnings are calculated as if he had recently qualified
or his earnings will be considered to be equal to a person in the same trade or occupation
with five years more experience than the disabled employee, whichever is more favourable.
The same principles apply mutatis mutandis to an employee who is under the age of 26 years
at the time of the accident and who is permanently disabled (s 51).
6.6.3 In the event of the death of an employee (s 54)

• The widow or widower of the deceased will receive:
– a lump sum of twice the monthly pension that would have been payable if the em-
ployee had been 100% permanently disabled (i.e. 75% of monthly earnings up to the
prescribed threshold) plus
– a monthly pension of 40% of the monthly pension that would have been payable if the
employee had been 100% permanently disabled (i.e. 40% of 75% of the monthly
earnings up to the prescribed threshold).
The widow or widower will receive the monthly pension until the day of his or her death.
Remarriage does not change this position.
• Children under 18 years of age will receive a monthly pension of 20% of 75% of the
monthly earnings up to the prescribed threshold. They receive the monthly pension
until their 18th birthday or until their marriage or death before the age of 18.
• The total pension payable to the widow or widower and children may not exceed the
amount that would have been payable had the employee been 100% disabled.
• Funeral costs may be paid from the Compensation Fund. The amount will be deter-
mined by the Director General.
6.6.4 Compensation for occupational diseases (ss 65–69)

An employee is entitled to compensation if it can be proved that he has contracted an
occupational disease, as set out in Schedule 3 to the Act. A disease other than a Schedule 3
occupational disease will attract compensation if the Director General is satisfied that the
disease arose out of and in the course of the employee’s employment.
The claim for compensation must be submitted within 12 months of the commencement
of the disease (s 65). If an employee who has contracted an occupational disease was
employed in any work mentioned in Schedule 3, it is presumed that the disease arose out of
and in the course of his employment, unless the contrary is proved (s 66). An employee
must as soon as possible and in writing notify his employer of the contraction of the disease.
The employer must then report same to the Compensation Commissioner within 14 days
(s 68).
In Urquhart v Compensation Commissioner (2006) 27 ILJ 96 (E) the Court observed that the
law has long recognised that, for the purposes of compensation, a psychiatric disorder or
psychological trauma is as much a personal injury as a cracked skull and that there is
nothing in the definitions of “accident” and “occupational injury” in COIDA to indicate
that legislation has a contrary intention. See also Odayar v Compensation Commissioner 2006
(6) SA 202 (N); Marsland v New Way Motor & Diesel Engineering (2009) 30 ILJ 169 (LC).
6.6.5 Increased compensation (s 56)

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

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

Mining is an important industry in South Africa and is in nature and character so different
from other places of work that specialised legislation is necessary to cater for its unique
requirements. Mine workers often contract diseases associated with the work they perform.
The Occupational Diseases in Mines and Works Act 78 of 1973 provides for the payment of
compensation in such circumstance.
The Medical Certification Committee for Occupational Diseases, established under the
Act, is responsible for deciding whether a disease contracted while an employee was per-
forming risk work is a compensable one.
Risk means “the risk of contracting a compensatable disease to which persons who per-
form risk work in or at or in connection with a mine or works are exposed or the risk
determined by the risk committee in respect of a mine or works” (s 1). The Minister may by
notice in the Government Gazette declare any particular work or all work performed in or at
or in connection with any mine or works to be risk work (s 13). The Act requires all persons
performing risk work to be in possession of a certificate of fitness and to undergo medical
examinations at regular intervals (s 15 & Ch3).
The owner of a mine must keep a register of all persons performing risk work (s 16). The
Risk Committee for Mines and Works, also established under the Act (s 18), determines the
risks involved in or at or in connection with every controlled mine or works.
The Act provides for the payment of compensation in respect of certain diseases con-
tracted by persons employed in mines and works, such as pneumoconiosis, tuberculosis;
permanent obstruction of the airways and permanent cardio-respiratory disease attributable
to risk work and progressive systematic sclerosis.
Benefits are paid by the Compensation Commissioner for Occupational Diseases to an
employee or his dependants from the Mines and Works Compensation Fund (s 61).
Questions
Question 1
Compare the common law position of an employee who sustains injuries while on duty with
that of an employee who enjoys the protection of the Compensation for Occupational
Injuries and Diseases Act (COIDA). (8)
Question 2
Discuss the application of the Compensation for Occupational Injuries and Diseases Act.
Refer also to those categories of employees who are excluded from the application of
COIDA. (15)
Question 3
For an employee to qualify for compensation in terms of COIDA certain requirements must
be met. Discuss these requirements in detail and refer to decided cases to substantiate your
answer. (20)
Hint: See Innes v Johannesburg Municipality 1911 TPD 12; Nicosia v Workmen’s Compensation
Commissioner 1954 (3) SA 897 (T); Pyper v Manchester Liners Ltd 1916 2 KB 691; Minister of
Justice v Khoza 1966 (1) SA 410 (A); Assistent-ongevallekommissaris v Ndevu 1980 (1) SA 143
(E); Johannesburg City Council v Marine & Trade Insurance Co 1970 (1) SA 181 (W); Workmen’s
Compensation Commissioner v FA Stewart (Pty) Ltd (1991) 12 ILJ 1015 (Z); Ex parte Commissioner:
In re Manthe 1979 (4) SA 812 (E); Ward v Workmen’s Compensation Commissioner 1962 (1) SA
728 (T); Gumede en Andere v SA Eagle Versekeringsmaatskappy Bpk 1989 (3) SA 741 (T); Mureinik
“Workmen’s compensation and the mugging that arose ‘out of’ employment” (1980) 1 ILJ
33; Le Roux “Beheer oor werkersvervoer en die Ongevallewet” (1980) 1 ILJ 100.
Question 4
Give the formula for the calculation of compensation in each of the following instances:
4.1 temporary total disablement; (2)
4.2 permanent disablement; and (8)
4.3 death of an employee. (4)
Question 5
Section 36 of the Compensation for Occupational Injuries and Diseases Act makes it pos-
sible for an employee who has been injured to claim compensation from both the Compen-
sation Fund and from a third party who has caused his injuries. Discuss this section in detail
and refer to decided cases to substantiate your answer. (12)
Hint: See Govender v SA Stevedores Service Co Ltd (1981) 2 ILJ 27 (IC); SAR & H v SA Stevedores
Service Co Ltd 1983 (1) SA 1066 (A); and Blumenfeld “Workmen’s compensation: Third par-
ties’ liability” (1983) 4 ILJ 261.
Question 6
Explain whether the persons in the following circumstances will qualify for compensation
in terms of COIDA:
6.1 A learner in the course of a carpentering trade at a school suffers injuries while
making a chair. (4)
Hint: See Booyens NO v OFS Provincial Administration 1924 OPD 120.
6.2 A corporal in the SA National Defence Force who is injured while defending the
borders of the country. (3)
6.3 A domestic worker who works at an orphanage is injured while performing her duties.
There are usually 12 workers employed at the orphanage. (2)
6.4 A farm labourer is injured while servicing a tractor. (2)
6.5 An employee who works for a company with its head office in Johannesburg is
injured while working in Namibia for a period of six months. (3)
6.6 A general manager of a company who earns R40 000 per month is injured while
taking visitors on a factory tour. (3)
Question 7
William was employed by Wiltshire Dairies (Pty) Ltd. He commenced his duties at 6:00 and
left the dairy at 16:00 every day. His duties comprised the delivery of orders to clients,
followed by clerical work at the office. He also kept the keys to the dairy and safe with him
after working hours. One of the company’s delivery trucks was made available to him for
the deliveries and he was allowed to take this truck back home after the deliveries of the day
had been completed. It often happened that he made some of the deliveries on his way
home in the afternoon or early in the morning on his way to work. One morning, on his
way to work, the delivery truck broke down and he then used his own vehicle to get to work.
On his way to work he was involved in an accident and was killed.
William’s wife now wishes to claim compensation from the Compensation Fund. Advise
her as to the validity of her claim. (8)
Hint: See Ward v Workmen’s Compensation Commissioner 1962 (1) SA 728 (T); Assistent-
ongevallekommissaris v Ndevu 1980 (1) SA 143 (E); Ex parte Commissioner: In re Manthe 1979
(4) SA 812 (E); Gumede en Andere v SA Eagle Versekeringsmaatskappy Bpk 1989 (3) SA 741 (T);
Mureinik “Workmen’s compensation and the mugging that arose ‘out of’ employment”
(1980) 1 ILJ 33; and Le Roux “Beheer oor werkersvervoer en die Ongevallewet” (1980) 1
ILJ 100.
Question 8
Ruben is employed as a truck driver by KwaZulu-Natal Wholesale Liquors. His duties com-
prise the loading and unloading of cases of liquor and the delivery of orders to clients of
KWL. He earns R2 000 per week.
8.1 On his way to deliver a few cases of liquor to a retailer, he is involved in a motor
vehicle accident caused by one Van Wyk. He sustains serious back injuries and is para-
lysed. He is hospitalised for four months, after which time he slowly starts to regain
mobility. Seven months after the accident he is well enough to resume work.
(a) Is Ruben entitled to compensation in terms of COIDA? Explain and refer to case
law to substantiate your answer. (8)
Hint: See Nicosia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T); Min-
ister of Justice v Khoza 1966 (1) SA 410 (A); Assistent-ongevallekommissaris v Ndevu
1980 (1) SA 143 (E); Ex parte Commissioner: In re Manthe 1979 (4) SA 812 (E);
Ward v Workmen’s Compensation Commissioner 1962 (1) SA 728 (T).
(b) How will the nature of Ruben’s injuries be classified? (2)
(c) Assume that Ruben qualifies for compensation. Give the formula that applies for
the calculation of his compensation and then calculate the amount of compen-
sation he will receive. (4)
(d) Is Ruben entitled to claim compensation from Van Wyk? Discuss with reference
to decided cases. (8)
Hint: See Govender v SA Stevedores Service Co Ltd (1981) 2 ILJ 27 (IC); SAR & H v
SA Stevedores Service Co Ltd 1983 (1) SA 1066 (A); and Blumenfeld “Workmen’s
compensation: Third parties’ liability” (1983) 4 ILJ 261.
8.2 Because of a stay-away in which most employees participate, there is an insufficient
number of employees at KWL to perform all the different tasks. Ruben therefore
assists a co-worker in the warehouse to pack cases of liquor on shelves. Management is
unaware of Ruben helping the other worker. While Ruben is picking up a case he
experiences a pain in his back. A subsequent medical examination proves that one of
the vertebrae has slipped, probably caused by the movement when he handled the
case of liquor.
Hint: See cases mentioned above.
(b) How will the nature of Ruben’s injuries be classified? (2)
(c) Assume that Ruben qualifies for compensation. Give the formula for the calcu-
lation of his compensation and then calculate the amount he is entitled to. (4)
8.3 Ruben is conveyed to and from work by an independent driver who has been hired by
the company to transport its employees. The company does not prescribe to the driver
the route he has to take or any stops he has to make; the company only expects him
to fetch the workers at clocking out time and to return them the following morning
in time for work. One morning on their way to work eight of the KWL workers are
injured in a motor vehicle accident caused by the negligent driving of the driver.
Ruben is one of the workers who has been injured: he lost his left leg and suffered a
few other minor injuries.
Hint: See Assistent-ongevallekommissaris v Ndevu 1980 (1) SA 143 (E); Innes v Johan-
nesburg Municipality 1911 TPD 12; and Le Roux “Beheer oor werkersvervoer en
die Ongevallewet” (1980) 1 ILJ 100.
(b) How can the nature of Ruben’s injuries in this case be classified? (2)
(c) Assume that Ruben qualifies for compensation. Give the formula for the calcu-
lation of his compensation and then calculate the amount he is entitled to. (4)
8.4 While Ruben is on his way to make deliveries to a client of KWL he stops for refresh-
ments at a cafe. When exiting the cafe, he crosses the street without looking out for
oncoming traffic. An oncoming car knocks him down and Ruben’s right leg is bro-
ken, with the result that he cannot work for six weeks.
Is Ruben entitled to compensation in terms of COIDA? Explain and refer to case law
to substantiate your answer. (8)
Hint: See Nicosia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T); Innes v
Johannesburg Municipality 1911 TPD 12; and Johannesburg City Council v Marine & Trade
Insurance Co 1970 (1) SA 181 (W).
Question 9
James was a police officer in the employ of SAPS for 15 years until he was medically boarded.
Three years before his employment ended James was diagnosed as suffering from post-
traumatic stress disorder. He claimed compensation in terms of COIDA. In his application
he submitted that he had, during the course of his work, been exposed to numerous
deaths, shootings, murders, armed robberies, motor vehicle accidents and rapes and as a
result was suffering from a work-based mental disease. Discuss whether his claim will be
successful, paying particular attention to the definition of “accident”. (10)
Hint: See Odayar v Compensation Commissioner 2006 (6) SA 202 (N); Urquhart v Compensation
Commissioner (2006) 27 ILJ 96 (E); Marsland v New Way Motor & Diesel Engineering (2009) 30
ILJ 169 (LC).
Appendix 1
SCHEDULE 2
Percentage of
Injury permanent
disablement
Loss of two limbs .....................................................................................................................
100
Loss of both hands, or of all fingers and both thumbs......................................................... 100
Total loss of sight ....................................................................................................................
100
Total paralysis ..........................................................................................................................
100
Injuries resulting in being permanently bedridden ............................................................. 100
Any other injury causing permanent total disablement ....................................................... 100
Loss of arm at shoulder ...........................................................................................................
65
Loss of arm between elbow and shoulder .............................................................................. 65
Loss of arm at elbow ................................................................................................................
55
Loss of arm between wrist and elbow ..................................................................................... 55
Loss of hand at wrist ................................................................................................................
50
Loss of four fingers and thumb of one hand ........................................................................... 50
Loss of four fingers ...................................................................................................................
40
Loss of thumb – both phalanges ............................................................................................. 25
one phalanx ..................................................................................................
15
Loss of index finger – three phalanges................................................................................... 10
two phalanges ...................................................................................... 8
one phalanx......................................................................................... 5
Loss of middle finger – three phalanges ................................................................................ 8
two phalanges.................................................................................... 6
one phalanx ...................................................................................... 4
Loss of ring finger – three phalanges..................................................................................... 6
two phalanges ........................................................................................ 5
one phalanx........................................................................................... 3
Loss of little finger – three phalanges..................................................................................... 4
two phalanges ........................................................................................ 3
one phalanx........................................................................................... 2
Loss of metacarpals – first, second or third (additional) ...................................................... 4
fourth or fifth (additional) ................................................................. 2
Loss of leg – at hip ..................................................................................................................
70
between knee and hip....................................................................................... 45 to 70
below knee .........................................................................................................
35 to 45
Loss of toes – all.......................................................................................................................
15
big, both phalanges.......................................................................................... 7
big, one phalanx .............................................................................................. 3
other than big –
four toes....................................................................................................... 7
three toes ..................................................................................................... 5
two toes ........................................................................................................ 3
one toe ......................................................................................................... 1
Loss of eye – whole eye ........................................................................................................... 30
sight .................................................................................................................... 30
sight, except perception of light ...................................................................... 30
Loss of hearing – both ears ..................................................................................................... 50
one ear ........................................................................................................ 7
Total permanent loss of the use of a limb shall be treated as the loss of the limb.
Any injury to the left arm or hand and, in the case of a left-handed employee, to the right arm or
hand, may in the discretion of the Director-General be rated at ninety per cent of the above percent-
age.
If there are two or more injuries the sum of the percentages for such injuries may be increased, in
the discretion of the Director-General.
Appendix 2
SCHEDULE 3
[As published in GN 552 in Government Gazette 26302 of 30 April 2004.]
In this Schedule the following general concepts have been defined and clarified as set out below.
General
1. Schedule 3 deals with the List of Occupational Diseases which depicts diseases that are occupa-
tional and compensable on the benefits of an explicit presumption referred to in terms of section
66 of the Compensation for Occupational Injuries and Diseases Act, 1993.
2. The amended Schedule 3 is issued to align the list of diseases mentioned in the first column of
Schedule 3 of the Compensation for Occupational Injuries and Diseases Act, 1993 with the list of
occupational diseases appended to International Labour Organization R194 List of Occupational
Diseases Recommendation, 2002.
3. The amended Schedule 3 is issued in conformity with section 65(a) and 66 of the Compensation
for Occupational Injuries and Diseases Act, 1993.
4. The List of Occupational Diseases appended to this amended Schedule 3 shall supersede the list of
diseases mentioned in the first column of Schedule 3 in terms of 65(a) of the Compensation for
Occupational Injuries and Diseases Act, 1993.
5. Work shall be defined as:
• all work involving the handling of and/or exposure to any agent(s) mentioned in the List of
Occupational Diseases; and/or
• any occupation involving the handling of and/or exposure to specified agent/work processes
mentioned in the List of Occupational Diseases.
6. Work as defined in the amended Schedule 3 shall supersede all previous work(s) mentioned in
Schedule 3 and in section 66 of the Compensation for Occupational Injuries and Diseases Act,
1993.
A. LIST OF OCCUPATIONAL DISEASES

1. Diseases caused by agents
1.1. Diseases caused by chemical agents
1.1.1. Diseases caused by beryllium or its toxic compounds
1.1.2. Diseases caused by cadmium or its toxic compounds
1.1.3. Diseases caused by phosphorus or its toxic compounds
1.1.4. Diseases caused by chromium or its toxic compounds
1.1.5. Diseases caused by manganese or its toxic compounds
1.1.6. Diseases caused by arsenic or its toxic compounds
1.1.7. Diseases caused by mercury or its toxic compounds
1.1.8. Diseases caused by lead or its toxic compounds
1.1.9. Diseases caused by fluorine or its toxic compounds
1.1.10. Diseases caused by carbon disulphide
1.1.11. Diseases caused by the toxic halogen derivatives of aliphatic or aromatic hydro-
carbons
1.1.12. Diseases caused by benzene or its toxic homologues
1.1.13. Diseases caused by toxic nitro- and amino-derivatives of benzene or its homologues
1.1.14. Diseases caused by nitroglycerine or other nitric acid esters
1.1.15. Diseases caused by alcohols, glycols or ketones
1.1.16. Diseases caused by asphyxiants: carbon monoxide, hydrogen cyanide or its toxic
derivatives, hydrogen sulphide
1.1.17. Diseases caused by acrylonitrile
1.1.18. Diseases caused by oxides of nitrogen
1.1.19. Diseases caused by vanadium or its toxic compounds
1.1.20. Diseases caused by antimony or its toxic compounds

1.1.21. Diseases caused by hexane
1.1.22. Diseases of teeth caused by mineral acids
1.1.23. Diseases caused by pharmaceutical agents
1.1.24. Diseases caused by thallium or its compounds
1.1.25. Diseases caused by osmium or its compounds
1.1.26. Diseases caused by selenium or its compounds
1.1.26. Diseases caused by copper or its compounds
1.1.28. Diseases caused by tin or its compounds
1.1.29. Diseases caused by zinc or its compounds
1.1.30. Diseases caused by ozone, phosgene
1.1.31. Diseases caused by benzoquinone
1.1.32. Diseases caused by chlorine
1.1.33. Diseases caused by pesticides and/or herbicides
1.1.34. Diseases caused by oxides of sulphur
1.2. Diseases caused by physical agents
1.2.1. Hearing impairment caused by noise
1.2.2. Diseases caused by vibration (disorders of muscles, tendons, bones, joints, periph-
eral blood vessels or peripheral nerves)
1.2.3. Diseases caused by work in compressed air/abnormal atmospheric or water pres-
sure
1.2.4. Diseases caused by ionizing radiations
1.2.5. Diseases caused by extreme temperatures (cold and hot)
1.2.6. Diseases caused by ultraviolet radiation
1.3. Diseases caused by biological agents
1.3.1. Infectious or parasitic diseases contracted in an occupation where there is a
particular risk of contamination
1.3.2. Toxic/inflammatory syndromes (inhalation fever, toxic pneumonitis, organic dust
toxic syndrome) associated with exposure to bacterial and fungal contaminants
(endotoxin, mycotoxins, (1 ->3)-B-D-glucans, volatile organic compounds)
2. Diseases by target organ systems
2.1. Occupational respiratory diseases
2.1.1. Pneumoconiosis-fibrosis of the parenchyma of the lung caused by fibrogenic dust
2.1.2. Pleural thickening caused by asbestos dust exposure
2.1.3. Silicotuberculosis
2.1.4. Bronchopulmonary diseases caused by hard-metal dust
2.1.5. Bronchopulmonary diseases caused by cotton, flax, hemp or sisal dust (byssinosis)
2.1.6. Occupational asthma caused by one of the following recognised sensitising agents
or irritants inherent to the work process:
2.1.6.1. isocyanates
2.1.6.2. platinum, nickel, cobalt, vanadium or chromium salts
2.1.6.3. hardening agents, including epoxy resins
2.1.6.4. acrylic acids or derived acrylates
2.1.6.5. soldering or welding fumes
2.1.6.6. substances from animals or insects
2.1.6.7. fungi or spores
2.1.6.8. proteolytic enzymes
2.1.6.9. organic dust
2.1.6.10. vapours or fumes of formaldehyde, anhydrides, amines
2.1.6.11. latex
2.1.7. Extrinsic allergic alveolitis caused by the inhalation of the following organic dusts
and chemicals inherent to the work process: moulds, fungal spores or any other
allergenic proteinaceous material, 2,4 toluene-di-isocyanates
2.1.8. Siderosis
2.1.9. Chronic obstructive pulmonary diseases
2.1.10. Diseases of the lung caused by aluminium
2.1.11. Upper airways disorders caused by recognised sensitising agents or irritants inherent
to the work process
2.1.12. Diseases caused by chronic or repetitive exposure to products of combustion
2.2. Occupational skin diseases
2.2.1. Allergic or irritant contact dermatitis caused by physical, chemical or biological
agents
2.2.2. Occupational vitiligo
2.3. Occupational musculo-skeletal disorders
2.3.1. Musculo-skeletal diseases caused by specific work activities or work environment
where particular risk factors are present. Examples of such activities or environ-
ment include:
a. rapid or repetitive motion
b. forceful exertion
c. excessive mechanical force concentration
d. awkward or non-neutral postures
e. vibration
3. Occupational cancer
3.1. Cancer caused by the following agents
3.1.1. Asbestos
3.1.2. Benzidine and its salts
3.1.3. Bis chloromethyl ether (BCME)
3.1.4. Chromium and chromium compounds
3.1.5. Coal tars, coal tar pitches or soots
3.1.6. Beta-naphthylamine
3.1.7. Vinyl chloride
3.1.8. Benzene or its toxic homologues
3.1.9. Toxic nitro- and amino-derivatives of benzene or its homologues
3.1.10. Ionizing radiations
3.1.11. Tar, pitch, bitumen, mineral oil, anthracene, or the compounds, products or resi-
dues of these substances
3.1.12. Coke oven emissions
3.1.13. Compounds of nickel
3.1.14. Wood dust
3.1.15. Crystalline silica
3.1.16. Mycotoxins
3.1.17. Arsenic
4. Other diseases
4.1. Miners’ nystagmus
Appendix 3
EMPLOYER’S REPORT OF AN ACCIDENT W CI 2 (E)

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

I hereby declare that the particulars, shown in items 1 to 59 of this report, of an alleged injury
on duty, are to the best of my knowledge and belief true and accurate.
Signed on this ……… day of …………………… 19…… SIGNATURE ...........................................
EMPLOYER
1. Registered name with the Compensation Commissioner ............................................................
2. Registration number of this business with the Compensation
Commissioner
3. Contact person ................................................................................................................................
4. Street address .................................................................................. 5. Postal code ....................
6. Postal address ........................................... 7. Postal code .............. 8. Tel. (......) .................
9. Fax (......) ........... 10. Situation of business/farm .......................................................................
11. Nature of business, trade or industry.............................................................................................
EMPLOYEE
12. Is the injured employee a working director, working member of a CC, owner of or a part-
ner in the business? .......................................................................................................................
13. Surname ............................................................ 14. First names ...............................................
15. Id. No. ........................................... 16. Date of Birth ...../...../..... 17. Sex Male Female
18. Marital state Married Single 19. Citizen of .........................................................

20. Personnel No. ...................................... 21. Occupation ...........................................................
22. Street address ................................................................................. 23. Postal code ..................
Period in your employ Expected period of
24. 25. 0–13 days 14 and more
(years/months) ……/…… disablement (days)
ACCIDENT
26. Date of accident ……………/…………/………… 27. Time ......................
28. Place of accident .................................................................................. 29. District ..................
30. Date employee reported accident ……………/…………/………… 31. Time ......................
32. What task was the employee performing at the time of the accident? ......................................
33. Period of experience in task performed (years/months) …………………/………………
34. Was his action at the time of the accident in connection with your trade
Yes No
or business? (If “no” state reasons on reverse side)
35. Short description of how the accident occurred. (ALSO mark the applicable items on
reverse side and use the reverse side for a full description.).......................................................
........................................................................................................................................................
........................................................................................................................................................
(Refer to the machine/process involved and whether the injured person fell or was struck
and all the factors contributing to the accident)
36. Was the accident a traffic accident on a public road? Yes No
37. Nature of injury/ies sustained (e.g. index finger of right hand crushed) .................................
Mark any of the following when applicable: Killed Amputation Unconsciousness
38. Are you satisfied that the employee was injured

Yes No
in the manner alleged by him? If not, give reasons
........................................................................................................................................................
PART A PAGE 2 MUST ALSO BE COMPLETED, PLEASE

PART A PAGE 3
ADDITIONAL DETAILS OR COMMENTS
This page may be used for any additional details or comments regarding the accident.
35. Continuation of point 35 of the previous page. Contributing factors/causes applicable

(Mark the applicable item/s at A and B):
(A) (B)
Defective plant Railway Explosions
Defective machine Building work Rotating machine
Unfavourable Electricity Press/Rolls
conditions of work
Fault of employer Chemicals Woodworking
machines
Fault of injured em- Poisoning Lifting machines
ployee
Fault of supervisor Burns Hand tools
Other machinery (specify) ...........................................................................................................

Any other contributing factors, not mentioned above (specify) ................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
W CI 2 (E)
PART A PAGE 2
FURTHER PARTICULARS OF EMPLOYEE
39. Earnings of employee at the time of the accident: R/week R/month

Gross cash earnings ................................................................................... ............ ............
(Including average payments for overtime and/or commission of a
constant character)
Allowance of a recurrent nature:
(a) Bonuses (i.e. 13th cheque) ................................................................ ............ ............
(b) Other allowances (specify nature) .................................................... ............ ............
Cash value of free food .............................................................................. ............ ............
Cash value of free quarters ........................................................................ ............ ............
40. Will the employee during temporary total disablement continue to receive from you:
Free Food? Yes No Free quarters? Yes No
41. Are you prepared to make cash payments during temporary total disablement that lasts
longer than three months?
Yes No
42. If you have already paid cash to the employee, state the total amount R....................................
43. For what period were such payment made? From ……………/……………/…………… to
……………/……………/……………
44. Number of days per week worked by the employee ....................................................................
45. Date on which the employee ceased work ……/……/…… 46. Time ....................................
47. Did the employee complete his shift on the day of the accident? Yes No
48. Date on which the employee ceased work ……/……/…… 49. Time ....................................
(If employee has not yet assumed work, a Resumption Report (W CI 6) must be submitted
as soon as he resumes duty.)
50. If the employee was killed in the accident, state name and address of dependant of the
employee.
FURTHER PARTICULARS
51. Should the employee, to your knowledge, have any physical defect, suffer from any serious
disease prior to the accident or has previously received compensation for permanent
disablement, give full particulars ................................................................................................
.........................................................................................................................................................
52. Was first aid given in this case? Yes No
53. If a medical practitioner treated the employee, state name of the practitioner ........................
.........................................................................................................................................................
54. If the employee received treatment at a hospital, state name of hospital ..................................
.........................................................................................................................................................
55. Was the accident caused by the employee’s:
(a) Deliberate non-compliance with directions? Yes No
(b) Reckless disregard of the terms of any law or statutory regulation

designed to ensure the safety or health of employees or the pre- Yes No
vention of accidents?
(c) Action while under the influence of liquor or drugs? Yes No
(N.B.: If any reply is in the affirmative, the employee must furnish an explanatory state-
ment which must then be attached hereto together with your comments thereon.)
56. Name and address of anybody (a) Who witnessed the accident ...............................................
(b) Who was aware of the accident at the time ..........................................................................
57. How many other employees were injured in the same accident? ...............................................
58. If the accident was investigated by the SA Police, state name of the police station
........................................................................................................................................................
59. If motor vehicles were involved, furnish registration number/s ...............................................
ANY ADDITIONAL DETAILS CAN BE SUPPLIED ON PART A PAGE 3.

Appendix 4
W.Cl.3
Claim No. .............................
NOTICE OF ACCIDENT AND CLAIM FOR COMPENSATION
COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT, 1993
(ACT NO. 130 OF 1993)
(Previously Workmen’s Compensation Act, 1941)
[Section 38(1) and section 43(1) – Commissioner’s rules, forms and particulars – Annexure 14)
1. EMPLOYEE
Surname ................................................................................................................................................
(Capital letters)
First names .............................................................................................................................................
(Capital letters)
Id. No. ................................................................. Personnel No. .......................................................
Residential address ................................................................................................................................
..................................................................................................................... Postal Code ...................
Occupation Date of birth Sex Marital status
........................................... Male Female Married Not married
2. EMPLOYER
Name of employer in whose service the accident was contracted ......................................................
.................................................................................................................................................................
Address ..................................................................................................................................................
.................................................................................................................................................................
3. ACCIDENT
(i) When and where did the accident occur?
Date .................................... Time ................................... Place ........................................
(ii) What was the workman doing at the time and how did the accident occur?
..................................................................................................................................................
..................................................................................................................................................
(iii) Describe in detail the nature and extent of the injury .........................................................
..................................................................................................................................................
..................................................................................................................................................
(iv) Did anybody see the accident happen?
If so, specify? Name ...............................................................................................................
Address ...........................................................................................................
4. THE EMPLOYEE’S EARNINGS AT TIME OF ACCIDENT

Per week Per month
R R
Gross cash earnings .................................................................................... ................ .................
(including average overtime and/or commission of a regular nature)
Allowance of a regular nature:
(a) Bonuses (e.g. 13th cheque) .............................................................. ................ .................
(b) Other (specify) .................................................................................. ................ .................
............................................................................................................. ................ .................
Cash value of quarters ................................................................................ ................ .................
Cash value of food ...................................................................................... ................ .................
5. (a) If the accident resulted in the DEATH of the employee, the following information
relating to his dependants, on whose behalf the claim is made, should be given:
Full name Address Date of birth Relationship with employee
..................................... .............................. ............................. ......................................................
..................................... .............................. ............................. ......................................................
..................................... .............................. ............................. ......................................................
(b) In the case of all OTHER accidents, the following information should be furnished in
regard to next-of-kin of the employee:
Full name Address Relationship
................................................... ....................................................... ................................................
................................................... ....................................................... ................................................
................................................... ....................................................... ................................................
I certify that the information in this form is to the best of my knowledge correct.
Date .................................................................... ............................................................................

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

The applicability of OHASA is appropriately wide. It covers both the private and the public
sectors, the agricultural sector, domestic workers in private households and also persons
who are exposed to hazards, even though this is not supposed to occur in the context of
employment. In addition, the Minister may declare that, for the purposes of the Act or
some sections of the Act, a person or category of persons specified by him will be deemed
to be an employee.
187
The only exclusions from the Act are the following:

• a mine, a mining area or any works as defined in the Minerals Act 50 of 1991, except
insofar as that Act provides otherwise;
• certain vessels as defined in the Merchant Shipping Act 57 of 1951;
• the Minister may grant exemptions from any or all of the provisions of the Act; and
• labour brokers are not considered to be employers in terms of OHASA.
7.3 Advisory Council for Occupational Health and Safety (ss 2–6)
The Advisory Council for Occupational Health and Safety consists of 20 members, with the
Chief Inspector acting as chairperson. Employers’ and employees’ interests are also repre-
sented on the Council.
• Advise the Minister on matters of policy arising out of

the application of the Act.
• Advise the Minister on matters relating to occupational
health and safety.
• Conduct research and investigations.
• Advise the Department on the formulation and publi-
cation of standards, specifications and other forms of
guidance in order to assist employers and employees to
FUNCTIONS maintain appropriate standards.
OF • Advise the Department on the promotion of education
THE COUNCIL and training in occupational health and safety.
(s 3) • Advise the Department on the collection and dissemin-
ation of information on occupational health and safety.
• The Council may establish technical committees.
• Advise the Department on any matter regarding the per-
formance of its functions.
7.4 Duties of employers (ss 8–13)

An employer’s duties include the following:
(a) to provide and maintain, as far as is reasonably practicable, a working environment
which is safe and without risk to the health of employees;
(b) to provide and maintain systems of work, plant and machinery which are safe and with-
out risk to the health of employees;
(c) to take reasonable steps to eliminate or mitigate any hazard or potential hazard to the
safety and health of employees before resorting to protective equipment;
(d) to make reasonable arrangements for safety and health in connection with production,
processing, use, handling, storage or transport of articles or substances;
(e) to establish the hazards, if any, to the health and safety of employees in the workplace
and to provide the necessary precautionary measures in this regard;
(f) to provide information, instruction, training and supervision to ensure health and
safety of the employees at work;
(g) to ensure that work is performed and that plant or machinery is used under the super-
vision of a trained person;
(h) to conduct the business in such a manner so as to ensure that persons other than
employees are not exposed to hazards;
Occupational Health and Safety Act 85 of 1993 189
(i) to ensure that employees are conversant with the hazards to their health and safety
attached to the work they are performing;
(j) to appoint health and safety representatives and to inform them of inspections, inves-
tigations or formal enquiries of which the employer has been notified by an inspector;
(k) to inform the health and safety representative of any incident in the workplace for
which the representative has been designated;
(l) to identify and evaluate the hazards associated with listed work and, if possible, prevent
the exposure of employees to such work. If prevention is not possible, their exposure
must be minimised. An employer must also conduct an occupational hygiene and bio-
logical monitoring programme (ss 11 & 12); and
(m) to report to a labour inspector any incident at work in which a person dies, becomes
unconscious, suffers loss of a limb or becomes ill, the spilling or release of a dangerous
substance or where machinery is out of control or fractured, resulting in uncontrolled
moving objects and to ensure that the site of the incident is not disturbed (s 24).
Manufacturers supplying articles or substances to employers have the following duties (s 10):
(a) manufacturers must ensure that articles provided by them are safe and without risk to
health when properly used. They must also provide information to employees regard-
ing the use of any article or substances; and
(b) persons who erect or install articles to be used at work must ensure that they are safe
and without risk to health when properly used.
7.5 Duties of employees (ss 14–15)

Employees also need to have regard to health and safety in the workplace. An employee
must:
(a) take reasonable care of his own health and safety and also of the health and safety of
other employees;
(b) co-operate with the employer or other designated person with regard to health and
safety matters;
(c) obey the health and safety rules and procedures laid down by the employer or a person
authorised by the employer;
(d) report any unsafe or unhealthy situation or any incident which may affect health or
safety to the employer or a health and safety representative; and
(e) refrain from interfering with or misuse or damage anything which is provided in the
interest of health and safety.
7.6 Health and safety representatives (ss 17–18)

An employer who has more than 20 employees in his employment must appoint, after con-
sultation with its workforce or their representatives, in writing one or more of the full-time
employees as health and safety representatives for the workplace or different sections there-
of. Such appointments must be made within four months after the employer commences
business or within four months from such time as the number of employees exceeds 20, as
the case may be (s 17(1)).
In shops and offices one health and safety representative for every 100 employees must
be appointed, while in other workplaces one representative for every 50 employees is to be
appointed. An inspector may direct that an employer who employs fewer than 20 employees
also appoint a health and safety representative (s 17(5)).
Before an employer appoints one or more health and safety representatives it must con-
sult with the employees or their representative(s), such as a trade union, regarding the
arrangements and procedures for the nomination and election, terms of office and subse-
quent designation of health and safety representatives. If the employer and employees
cannot agree on the appointment of health and safety representatives, the matter must be
referred to arbitration or, if the parties cannot agree on an arbitrator within 14 days, they
must give notice to the President of the Industrial Court who, in consultation with the Chief
Inspector, will designate an arbitrator. This provision, contained in section 17(2) of the Act,
is obviously outdated as the Industrial Court no longer exists. One could argue that the
CCMA will have to appoint an arbitrator because, in terms of the transitional provisions of
the Labour Relations Act 66 of 1995 (LRA), the CCMA must perform the functions previ-
ously performed by the Industrial Court. Or, it could be argued that the Labour Court will
have to be approached. An amendment to section 17(2) of OHASA is awaited to bring
clarity as to how disputes about the appointment of health and safety representatives should
be resolved.
Health and safety representatives receive training and perform their functions and duties
during ordinary working hours. The employer must provide facilities, assistance and train-
ing as may be reasonably required and have been agreed upon to such representatives. A
health and safety representative does not incur any civil liability by reason of the fact only
that he failed to do anything which he may do or is required to do in terms of the Act.
• Review the effectiveness of health and safety measures.

• Identify potential hazards and incidents.
• In collaboration with the employer, examine the causes of
incidents.
• Investigate complaints by employees relating to health and
safety.
• Make representations regarding the above-mentioned and
FUNCTIONS OF
other matters regarding the health and safety of employees.
HEALTH
AND SAFETY • Inspect the workplace, articles, substances, machinery and
REPRESENTATIVES safety equipment at such intervals as may be agreed upon
(s 18) with the employer.
• Consult with and accompany inspectors on inspections.
• Attend meetings of health and safety committees.
• Attend the inspection of an incident.
• Attend any investigation or formal enquiry and inspect
documents kept by the safety audit.
7.7 Health and safety committees (ss 19–20)

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

regarding health and safety matters.
FUNCTIONS • Must discuss any incident in which a person was injured,
OF became ill or died and may in writing report on the incident
COMMITTEES to a labour inspector.
(s 20)
• Must keep record of all recommendations made to the
employer and reports made to an inspector.
7.8 Inspectors (ss 28–32)

The Minister appoints labour inspectors who are employees of the Department of Labour
(DoL). A certificate is furnished to each inspector as proof of his appointment (s 28).
Inspectors have varied functions and duties. These functions and duties include:
• general functions and powers to ensure that the provisions of the Act are complied with
(s 29);
• special powers relating to health and safety (s 30); and
• functions relating to incidents or accidents in the workplace (ss 31 & 32). These func-
tions and duties may be summarised as follows:
• May, without prior notice, enter any premises.

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

continuing with the performance of any act which may
threaten the health and safety of any person.
• May in writing prohibit a user of plant or machinery from
commencing or continuing with the use of such plant or
machinery which may threaten the health and safety of any
person.
• May barricade or fence off the part of the workplace to
which the prohibition applies.
• May in writing prohibit an employer from requiring or
SPECIAL permitting an employee belonging to a certain category to
POWERS be exposed for longer than a specified period to any article,
substance, organism or condition which may threaten the
health and safety of such employee
• Any of the above prohibitions may be revoked by the inspec-
tor if arrangements to the satisfaction of the inspector have
been made to dispose of the threat.
• May specify steps in writing to an employer or user to be
taken in the interest of health and safety.
• May investigate an incident which has resulted in injury,

illness or death.
• May conduct a formal enquiry into the incident.
• May, for the purposes of the enquiry, subpoena any person
to appear before him and to give evidence.
• May designate any person to lead evidence and to examine
INVESTIGATIONS
any witness (interested persons may personally, or with legal
representation, question any witness at the enquiry).
• Submit a report to the National Prosecuting Authority and a
copy of the report to the Chief Inspector after completion
of the investigation.
7.9 Miscellaneous
In terms of section 7 the Chief Inspector may direct any employer or class of employers to
prepare a written policy concerning the protection of the health and safety of employees in
the workplace, including a description of the organisation and the arrangements for carry-
ing out and reviewing the policy. Such direction must be accompanied by guidelines con-
cerning the content of the policy. The policy must then be displayed at a place where
employees normally have access.
In terms of section 35 any person who is aggrieved by the decision of an inspector may
appeal in writing, and within 60 days, against such a decision to the Chief Inspector, who
must consider the appeal and either confirm it or set it aside. A further right of appeal lies
against the decision of the Chief Inspector to the Labour Court. The appeal to the Labour
Court must be made in writing and within 60 days of the decision of the Chief Inspector.
7.10 Mine Health and Safety Act 29 of 1996

The protection of the health and safety of employees and other persons in the mining
industry is governed by the Mine Health and Safety Act 29 of 1996. This Act applies to
mines, mining areas and works.
The Act requires an employer to take responsibility for the health and safety of workers
at a mine. The employer must provide and maintain a working environment that is safe and
without risk to the health of employees, supply and maintain all the necessary health and
safety equipment, appoint persons and provide them with the means to comply with the
requirements of the Act, establish a health and safety policy and provide the necessary
health and safety training.
If employees are exposed to health hazards the employer must establish and maintain a
system of medical surveillance and keep a service record of employees who perform work in
respect of which a medical surveillance is conducted.
In terms of the Act every employee, while at a mine, must take reasonable care to protect
his own health and safety and that of other persons. He must use and take proper care of
protective clothing and equipment, report to his immediate supervisor any situation which
presents a risk to the health and safety of employees and comply with the prescribed health
and safety measures. An employee has the right to leave any workplace whenever circum-
stances arise which appear to pose a serious danger to his health or safety or when the
health and safety representative directs the employee to leave the workplace.
Tripartite institutions: The Act provides for the establishment and functioning of two tripar-
tite institutions (whose members represent the State, employers and employees):
• the Mine Health and Safety Council which advises the Minister on health and safety at
mines. The Council may, when necessary, establish a committee or committees, which
may include the Mining Regulation Advisory Committee, the Mining Occupational
Health Advisory Committee and the Safety in Mines Research Advisory Committee; and
• the Mining Qualifications Authority which advises the Minister on training and education
to improve health and safety standards and the registration of education and training
standards and qualifications in the mining industry.
Inspectorate of Mine Health and Safety: A Mine Health and Safety Inspectorate is established as
a juristic person. The Chief Inspector of Mines, who is appointed by the Minister, must
ensure that the provisions of the Act are complied with. The Chief Inspector must appoint
an officer with the prescribed qualifications and experience as the Medical Inspector and
officers with the prescribed qualifications and experience as inspectors. The inspectors have
varied powers and functions similar to the powers and functions of inspectors under
OHASA.
Health and safety representatives and committees: The Act provides for the appointment of health
and safety representatives and the establishment of health and safety committees. The
employer is required to conclude a collective agreement with the representative trade
union at the mine to regulate the appointment of representatives and the establishment of
committees.
Questions
Question 1
Discuss the appointment and functions of health and safety representatives. (15)
Question 2
Discuss the establishment and the functions of health and safety committees. (10)
Question 3
Discuss the special powers of inspectors with regards health and safety at a workplace. (6)
Question 4
Discuss the following statements, indicating whether you agree with them or not:
4.1 Failure on the part of an appointed health and safety representative to carry out the
duties he has been charged with in terms of s 18 is a punishable offence. (2)
Hint: See ss 8, 18(4) & 28(1).
4.2 An employer and his employees may enter into a binding contract in terms of which
they undertake that certain provisions of the Act would not be applicable to them. (2)
Hint: See ss 40 & 41.
4.3 An employer may decide, in consultation with the health and safety representatives,
whether to appoint a health and safety committee. (2)
Hint: See ss 19(1) & 38(1)(a).
4.4 In terms of section 24 a traffic accident on a public road need not be reported
to an inspector. (1)
Hint: See s 24(3)(a).
4.5 The Act applies to persons employed in the public sector. (1)
Hint: See ss 38 & 47.
4.6 Any person aggrieved by a decision of an inspector in terms of this Act may
appeal against that decision to the Labour Court. (2)
Hint: See s 35.
4.7 When an accident in the workplace is reported to an inspector in terms of section 24
of OHASA, the employer is exempted from notifying the Compensation Commissioner
of that accident as is normally required by the Compensation for Occupational Inju-
ries and Diseases Act of 1993. (2)
Question 5
The owner of a clothing factory with a workforce of 80 has recently started operations at a
second plant approximately five kilometres from the existing premises and is under the
impression that he has to appoint a health and safety representative for the second plant.
The workforce at the second plant consists of a foreman and 20 workers. These workers
are semi-skilled operators and belong to a trade union. The shop steward of the union at
the new plant approaches the owner with the request that he be appointed as health and
safety representative for the new plant. The owner initially intended appointing the fore-
man as health and safety representative, since he is already serving on the health and safety
committee of the original workplace. Given these facts, answer the following questions. Give
reasons for your answers:
5.1 Is it at all necessary to appoint a health and safety representative for the second
plant? (4)
5.2 Is the foreman already a health and safety representative? (2)
5.3 What factors should be considered when deciding on who to appoint as a health
and safety representative? (5)
5.4 May the employees resort to industrial action if a dispute arose between the employer
and the trade union over the appointment of the health and safety representative? (5)
Question 6
Discuss the legal implications of the following situations:
6.1 An employer requires his health and safety representatives to “clock out” for the time
it takes them to fulfil their duties as health and safety representatives. (10)
Hint: See ss 17(7), 23, 38(4), 37(4), 37(5) & 39(3) of OHASA.
6.2 One Saturday a backyard mechanic does repair work on a member’s boat at a yacht
club, using a high-speed saw. He often does this type of work over weekends to aug-
ment his income. While busy with this, a club member (Mr X), who is obviously drunk,
comes aboard for a chat. During the chat the backyard mechanic stops working to
fetch a couple of beers from below deck. While thus occupied he hears a commotion
and hastens onto the deck. In his absence the drunken visitor fiddled around with
the saw and amputated his left foot at the ankle. (10)
Hint: See the definitions of “workplace”, “machinery”, “user” and “premises” in s 1 of
OHASA. Also see s 24(1)(a) of OHASA and regs 12 and 16 of the General Adminis-
trative Regulations.
Question 7
Employee X’s wife, who is not an employee of the company, visits her husband at work. As
X’s office is on the first floor, she takes the stairs. On the way up her right shoe is caught in
a rubber strip, which has been hanging loose for a considerable time, but which the health
and safety representative failed to bring to the attention of his employer, an inspector or
the health and safety committee. Mrs X loses her balance, falls and hits her head against the
railings, resulting in a momentary loss of consciousness. A subsequent medical examination
shows that she has not sustained any permanent damage or serious injury.
7.1 Must this incident be reported to an inspector? (3)
7.2 Can Mrs X institute a delictual claim against the health and safety representative? (3)
7.3 What can the employer do? More specifically, can he take disciplinary steps against
the health and safety representative? (3)
Question 8
A fire started in the air-conditioning shaft of a building in which employees worked with
highly flammable material. The fire was extinguished, but one employee was killed and two
other employees were seriously injured. Discuss the powers of an inspector in these circum-
stances. (6)
Appendix
ANNEXURE 11
OCCUPATIONAL HEALTH AND SAFETY ACT, 1993
(ACT NO. 85 OF 1993)
REGULATION 9 OF THE GENERAL ADMINISTRATIVE REGULATIONS
RECORDING AND INVESTIGATION OF INCIDENTS
A. RECORDING OF INCIDENT
1. Name of employer ........................................................................................................................
2. Name of affected person ..............................................................................................................
3. Identity number of affected person ..............................................................................................
4. Date of incident ..................................................... 5. Time of incident ...............................
6. Part of body affected Head or
Eye Trunk Finger Hand
neck
Arm Foot Leg Internal Multiple
7. Effect on person Sprains or Contusion

Fractures Burns Amputation
strains or wounds
Occupa-
Electric Asphyxi- Uncon-
Poisoning tional
shock ation sciousness
Disease
8. Expected period of > 52 weeks or

0–13 2–4 > 4–16 > 16–52
disablement permanent Killed
days weeks weeks weeks
disablement
9. Description of occupational disease ............................................................................................
10. Machine/process involved/type of work performed/exposure** ............................................
........................................................................................................................................................
........................................................................................................................................................
11. Was the incident reported to the Compensation Commissioner and the Provincial Director?
Yes No
12. Was the incident reported to the police?* Yes No

13. SAPS office and reference ............................................................................................................
* to be completed in case of a fatal incident.
** in case of a hazardous chemical substance, indicate substance exposed to.
________________________
1 Of the general administrative regulations published under GN R929 in GG 25129 of 25 June 2003.
B. INVESTIGATION OF THE ABOVE INCIDENT BY A PERSON DESIGNATED THERETO

1. Name of investigator .....................................................................................................................
2. Date of investigation .....................................................................................................................
3. Designation of investigator ...........................................................................................................
4. Short description of incident .......................................................................................................
........................................................................................................................................................
........................................................................................................................................................
........................................................................................................................................................
5. Suspected cause of incident .........................................................................................................
........................................................................................................................................................
........................................................................................................................................................
........................................................................................................................................................
6. Recommended steps to prevent a recurrence ............................................................................
........................................................................................................................................................
........................................................................................................................................................
........................................................................................................................................................
........................................................................ ........................................................................
Signature of investigator Date
C. ACTION TAKEN BY EMPLOYER TO PREVENT

THE RECURRENCE OF A SIMILAR INCIDENT
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
........................................................................ ........................................................................
Signature of employer Date
D. REMARKS BY HEALTH AND SAFETY COMMITTEE

Remarks
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
........................................................................ ........................................................................
Signature of Chairman of Date
Health and Safety Committee
8
SKILLS DEVELOPMENT
8.1 Introduction
A skilled workforce is an essential requirement for the growth of our economy. Training is,
therefore, becoming increasingly important. Since 1922 statutory provisions have been in
existence to ensure that certain categories of employees receive adequate theoretical and
practical training to equip them to perform at prescribed levels of skills in certain trades
and occupations. The first statute was the Apprenticeship Act 26 of 1922. After a number of
amendments over the following 20 years, the Act was finally replaced by the Apprenticeship
Act 37 of 1944. The 1944 Act underwent a number of changes and other statutes were
enacted alongside it, such as the Training of Artisans Act 38 of 1951 and the Black Building
Workers Act 27 of 1951. In 1970 the Industrial Conciliation Act was amended to allow for
the introduction of training schemes into industrial council agreements. The Black Employ-
ees In-Service Training Act was introduced in 1976 and the In-Service Training Act in 1979.
The Wiehahn Commission recommended the consolidation of all these laws, which eventu-
ally culminated in the enactment of the Manpower Training Act in 1981.
The Manpower Training Act 56 of 1981 established a statutory framework for employment-
related training, but from 1995 much work and deliberation went into further developing
our laws pertaining to training. These efforts resulted in the publication of a Green Paper
on skills development in March 1997, the Green Paper on Skills Development Strategy for
Economic and Employment Growth in South Africa. Public comment and negotiations fol-
lowed, amendments to the Green Paper were effected and in September 1998 the Skills
Development Bill was submitted to Parliament for approval. The Bill was enacted as the
Skills Development Act 97 of 1998 (SDA) and came into effect on 2 February 1999, save for
the provisions relating to the establishment and functioning of SETAs, the Skills Develop-
ments Planning Unit and labour centres, which commenced on 10 September 1999.
Amendments to the SDA were introduced by the Skills Development Levies Act 9 of
1999, the Skills Development Amendment Acts 31 of 2003, 37 of 2008 and 26 of 2011; the
Higher Education Laws Amendment Act 26 of 2010 and the Employment Services Act 4 of
2014. A significant change was the transfer of certain responsibilities from the Minister of
Labour to the Minister of Higher Education and Training. The Minister of Labour was until
31 October 2009 responsible for administering the regulatory framework of the SDA. With
effect from 1 November 2009 the provisions dealing with skills development matters were
1
transferred to the Minister of Higher Education and Training.
________________________
1 In terms of Proc 56 of 2009 in GG 32549 of 4 September 2009.
199
8.2 Skills development strategy

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

and other policy proposals
The Labour Relations Act of 1995 (LRA) was the first of four major policy initiatives by the
Ministry of Labour in the new, democratic South Africa. Thereafter, in partnership with the
then Minister of Education, the South African Qualifications Authority Act of 1995 was prom-
2
ulgated. In 1996 two Green Papers were developed: Policy Proposals for a new Employment
________________________
2 The National Qualifications Framework Act 67 of 2008 has repealed the South African Qualifications
Authority Act 58 of 1995 in its entirety.
Skills development 201
Statute and Policy Proposals for a new Employment and Occupational Equity Statute. The
Green Paper on Skills Development Strategy for Economic and Employment Growth in
South Africa is complementary to all of these. The latest strategy development is the Na-
tional Skills Development Strategy III which applies until 2020.
The LRA requires bargaining and statutory councils “to promote and establish training
and education schemes” (ss 28(f) & 43(1)(b) of the LRA). In terms of section 84(1) of the
LRA an employer is required to consult with a workplace forum on education and training.
It is consequently envisaged that sectoral intermediaries, such as Sector Training and Edu-
cation Authorities (SETAs), would support and interact with bargaining councils, statutory
councils and workplace forums in respect of training.
The Basic Conditions of Employment Act of 1997 (BCEA) overlaps with the Skills Devel-
opment Act in that an employer and a learner are required to enter into a contract of
employment if the learner was not in the employment of the employer when the learner-
ship agreement was concluded. The Minister may also by sectoral determinations set terms
and conditions of employment for learners.
The Employment Equity Act of 1998 (EEA) makes provision for an employer to retain
and develop people from designated groups and to implement appropriate training
measures, including skills development in terms of the Skills Development Act.
8.4 Skills Development Act 97 of 1998

8.4.1 Introduction
The Skills Development Act (SDA) is the product of in-depth discussions and work within
the Department of Labour and the social partners in the National Training Board and
industry training boards. The SDA replaces the Manpower Training Act, the Guidance and
Placement Act of 1981, the Local Government Training Act of 1985 and sections 78–87 of
the Telecommunications Act of 1996.
The SDA promotes a skills development strategy that is flexible, accessible, demand-led,
decentralised and based on a partnership between the public and private sectors.
8.4.2 Purposes of the Act (s 2)

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

The Department of Higher Education and Training (DHET) is primarily responsible for
skills development, i.e. training, education and learning, while the Department of Labour
(DoL) plays a supporting role.
The National Skills Authority is the ultimate overseer of skills development and is estab-
lished in terms of the SDA. The Minister of Higher Education and Training establishes
SETAs that are responsible for sector-specific training and skills development. The Minister
may also establish skills development institutes to provide advisory services and learning
programmes. The SDA establishes the Quality Council for Trades and Occupations (QCTO)
to advise the Minister on policy issues relating to occupational standards and qualifications.
And, the Director General of the DHET is required to establish a national artisan moder-
ation body to oversee the training of artisans in listed trades. DoL assists in the objectives of
skills development by doing research into skills development needs and the formulation of
strategies.
National Skills Authority (NSA) (ss 4–8)

The NSA is the vehicle to promote the strategic focus of skills development and co-
ordination between the different stakeholders. The NSA replaces the old National Training
Board (NTB) and has wider powers than the NTB had, thereby giving industry, community
representatives and government departments a much stronger voice and influence over
skills development in the country. These constituencies will play an important role in
ensuring that education and training is relevant to industry and development needs.
The NSA was established in terms of section 4 of the SDA and comprises a chairperson, a
CEO and 30 members appointed by the Minister to represent the State, training providers,
the QCTO and SAQA, organised labour, organised business and other organisations,
including those representing the interests of women, youth and disabled persons.
In terms of section 5 the functions of the NSA are:
• to advise the Minister on a national skills development policy and strategy, guidelines on
the implementation of the national skills development strategy, the allocation of sub-
sidies from the National Skills Fund and any regulations to be made;
• to liaise with SETAs regarding the national skills development policy, the national skills
development strategy and sector skills plans;
• to report to the Minister on the progress made in the implementation of the national
skills development strategy;
• to conduct the necessary investigations on any matter arising out of the application of
the Act;
• to liaise with the QCTO on occupational standards and qualifications; and
• to exercise the powers and perform the duties conferred or imposed on the NSA by the
Act.
Sector Education and Training Authorities (SETAs) (Ch 3 ss 9–15)

A Sector Education and Training Authority (SETA) is a body which combines the functions
of the erstwhile industry training boards and of education and training quality assurers.
The Minister of Higher Education may, by notice in the Government Gazette, establish a
SETA for any national economic sector. In determining a sector, the Minister must have
regard to the education and training needs of employers and employees who use similar
materials, processes and technologies and who make similar products or render similar
services. Further considerations are the potential of the sector for coherent occupational
structures and career-pathing, the scope of any national strategy for economic growth and
development and the financial and organisational ability of the sector to support a SETA.
Consensus of stakeholders (the State, organised labour and organised business) must be
sought (s 9).
The Minister may, after consultation with the NSA and the SETA in question, change the
sector of that SETA, amalgamate two or more SETAs or dissolve a SETA. Notice of these
changes must be given in the Government Gazette (ss 9(4) & 9A).
The Minister must provide every SETA with a constitution in line with a standard pre-
3
scribed constitution. The standard constitution must inter alia set out the composition,
responsibilities, powers and duties of the accounting authority of the SETA; identify the
SETA by name and sector; set out the general objectives and functions of the SETA; estab-
lish and identify the functions of committees (e.g. executive, audit and finance commit-
tees); provide for the appointment of a Chief Executive Officer and other employees; deal
with the finances of the SETA; and include a code of conduct and dispute resolution sys-
tem. A SETA wishing to deviate from the standard constitution must apply in writing to the
Minister and provide the necessary motivation. The Minister may approve a deviation if it is
unique to the functions and operation of the specific SETA and if recommended by the
NSA (s 13).
An accounting authority for every SETA is appointed by the Minister. An accounting
authority comprises a chairperson and 14 members representing organised labour, organ-
ised business, relevant government departments, professional bodies, bargaining councils
and community organisations (s 11). A CEO is appointed after the accounting authority has
made recommendations to the Minister (s 13B).
A SETA may, with the approval of the Minister, establish chambers in its sector. Each
chamber must have equal representation of employees and employers and must perform
the functions delegated to it in terms of the constitution of the SETA. A chamber is entitled
to such a percentage of the skills development levies collected in its jurisdiction as the Min-
ister, after consultation with the SETA, determines (s 12).
The functions of a SETA cover a broad spectrum of activities (s 10). A SETA must inter
alia:
• develop a sector skills plan within the framework of the national skills development strat-
egy;
• implement its sector skills plan by establishing learnerships, approving workplace skills
plans, allocating grants and monitoring education and training in the sector;
• promote learnerships and register learnership agreements;
• apply for accreditation with SAQA as a body responsible for monitoring and auditing
achievements in terms of established education and training standards or qualifications;
• collect and disburse skills development levies in its sector;
• liaise with the NSA in respect of the national skills development strategy and its sector
skills plan;
• submit to the Director General reports on the implementation of its sector skills plan
and financial statements of its income and expenditure;
• liaise with the provincial offices and labour centres of DoL and any education body to
improve information regarding employment opportunities;
• liaise with the QCTO regarding occupational qualifications; and
• appoint staff necessary for the performance of its functions.
Every SETA must conclude a service-level agreement with the Director General for each
financial year. This agreement must make provision for the performance of the SETA’s
functions, for its annual business plan and for any assistance the Director General is to pro-
vide to the SETA (s 10A).
________________________
3 See the Standard Constitution Regulations promulgated in GG 35336 of 11 May 2012.

A SETA is financed mainly from skills development levies collected in its sector and
monies paid to it from the National Skills Fund. All monies must be paid into a banking
account and may only be used to fund the performance of its functions. Proper financial
statements must be kept which must be submitted to the Auditor General for an annual
audit (s 14).
A SETA that is not performing its functions, that is no longer representative or that is
guilty of mismanagement may be instructed by the Minister to take steps to rectify whatever
is wrong or the SETA may be placed under administration (ss 12A & 15).
Skills development institutes (s 26E)

The Minister may by notice in the Government Gazette establish skills development institutes
in accordance with the requirements prescribed by regulation. Skills development institutes
provide advisory services on skills development, mentoring and the recognition of prior
learning and may provide learning programmes.
Quality Council for Trades and Occupations (QCTO) (ss 26F–26J)

The QCTA was established in terms of section 26G of the SDA. It comprises of a CEO and
16 members appointed by the Minister.
The QCTO is in the main an advisory body on policy issues concerning occupational
standards and qualifications. It is responsible for developing, establishing and maintaining
occupational standards and qualifications and ensure the quality thereof, as well as the
quality of learning in the workplace.
The QTCA is required to liaise with the NSA, SAQA and other quality councils and pro-
fessional bodies on occupational standards and qualifications.
Department of Labour (ss 22–23)

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

Learnerships (Ch 4 ss 16–19)
A SETA may establish a learnership if such a learnership is related to an occupation and it
consists of a structured learning component and practical work experience, which will lead
to a qualification registered by SAQA. The SETA must register the learnership with the
Director General (s 16).
A learnership agreement is an agreement entered into for a specified period between a
learner, an employer or group of employers and an accredited skills development provider.
In terms of such an agreement:
• the employer must employ the learner for the period specified, provide him with speci-
fied practical work and allow him to attend the specified education and training;
• the learner must work for the employer and attend the education and training; and
• the skills development provider must provide the learner with the specified education
and training (s 17(1) & (2)).
Every learnership agreement must be registered with the relevant SETA (s 17(3)) and a
record of all learnership agreements must be presented to the Director General (s 17(6)).
The purpose of a learnership is to provide practical and theoretical training to the
employee for a specified period. The learnership agreement may therefore not be termin-
ated before the end of that period. However, if the learner successfully completes the
learnership before the end date, the agreement may be terminated. Similarly, the SETA
may approve early termination. The agreement will also be terminated before the end date
if the learner, as an employee, is fairly dismissed for incapacity or misconduct (s 17(4)).
Because the learner works for an employer and is accordingly an employee, a contract of
employment has to be concluded alongside the learnership agreement. A newly appointed
learner/employee will have to conclude the two contracts at the same time, when com-
mencing employment and training. An existing employee will already have concluded a
contract of employment, but needs to conclude the learnership agreement when he starts
training after his initial appointment. The employment contract is subject to any terms and
conditions the Minister may determine, as well as to the basic conditions of employment
found in the BCEA (s 18(1)-(4)). And, of course, the learner/employee may not be paid
less than the minimum wage as prescribed in the National Minimum Wage Act.
Where a newly appointed learner/employee concluded the learnership agreement and
the contract of employment at the same time (upon appointment), the two contracts are
inter-dependent; the one may not be terminated before the other. The employment con-
tract of an existing employee who subsequently embarked on a learnership programme is
not affected by the termination of the learnership agreement (s 18(5) & (6)).
Disputes in the context of learnerships are referred to the CCMA for conciliation and
arbitration (s 19). The disputes that can be conciliated and arbitrated by the CCMA are
those concerning:
• the interpretation or application of learnership agreements and contracts of employ-
ment;
• the interpretation or application of a ministerial determination applicable to learners
(determining employment conditions);
• Chapter 4 of the SDA, dealing with learnerships; and
• the termination of a learnership agreement or contract of employment.
It is interesting to note that, despite section 210 of the LRA, the provisions of the SDA
relating to learnerships prevail. Section 210 of the LRA states that in the event of a conflict
between the provisions of the LRA and any other law, the LRA takes precedence, subject
only to the Constitution or where “another Act expressly amends the LRA”. Section 19(7)
of the SDA expressly amends the LRA and therefore the SDA applies.
Artisans (Ch 6A ss 26A–26D)

When the SDA initially took effect in September 1999 it did not specifically provide for the
training of artisans. A new Chapter 6A was inserted into the SDA when amendments came
into operation in 2008, catering for artisan training.
To be an artisan, prescribed training in a “listed trade” is required. A “listed trade” is an
occupation declared by the Minister, by notice in the Government Gazette, as a trade for
which an artisan qualification is required (s 26B). Some of the well-known listed trades
include plumbing, carpentry, mechanics, electricity, fitter and turner and hairdressing.
A person who wishes to qualify as an artisan has to undergo a learnership or apprentice-
ship in a listed trade. This involves a prescribed period of theoretical training and working
for an employer to gain practical experience. At the end of the training the person must do
a trade test at an accredited trade test centre (s 26D(1)).
Access to a trade test will be allowed if the person has completed the prescribed learner-
ship, satisfied the requirements of an apprenticeship, has acquired sufficient prior learning
in the trade or has completed any other learning programme that resulted in a vocational
or occupational qualification (s 26D(2)).
Once a trade has been successfully completed the QCTO will issue a trade certificate to
the successful candidate, which serves as evidence that the person is qualified to perform
the trade (s 26D(4)).
No person may hold himself out as an artisan unless the prescribed trade test has been
successfully completed and the person has been registered as an artisan by entering his
name in the national register of artisans (ss 26D(1) & 26C(2)). The Director General must
maintain the register of artisans.
The body ultimately supervising artisan training is the National Artisan Moderation Body
(NAMB). It is established by the Director General and is part of DoL (s 26A(1)). The
NAMB monitors accredited trade test centres and the trade tests prospective artisans are
required to undergo. It also maintains a data-bank of assessors and moderators, record
artisan achievements, determine appeals against assessments and recommend certification
to the QCTO (s 26A(2)).
Skills programmes (Ch 5 ss 20–21)

A “skills programme” is a training programme that is occupationally based, uses accredited
training providers and, when completed, will constitute a credit towards a qualification
registered in terms of the National Qualifications Framework (s 20(1)).
Any person who has developed a skills programme may apply to a SETA for a grant or to
the Director General for a subsidy. The programme will be funded if it is a “skills pro-
gramme”, as defined, if it has been developed in accordance with the relevant sector skills
plan as well as the national skills strategy and if all requirements prescribed by the SETA or
Director General have been complied with (s 20(3)). Funds may be withheld or recovered
if they are not used for the allocated purpose, if the prescribed requirements are not
adhered to or if the training does not meet the required standards.
Any dispute about the application or interpretation of any term or condition of funding
or any matter about skills programmes may be referred to the Labour Court for adjudication.
8.4.5 Financing of skills development (ss 27–30)

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

Disputes concerning learnerships and the employment contract of a learner/employee are
conciliated and arbitrated by the CCMA (s 19). Other disputes arising from the SDA must
be adjudicated by the Labour Court. The Court also has the jurisdiction to review any act of
any person in connection with the SDA on any grounds permissible in law (s 31).
8.5 Skills Development Levies Act 9 of 1999

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

In terms of the regulations published by the Minister employers who are in full compliance
with the payment of the skills development levies may claim a grant from the relevant
SETA. A grant may either be a mandatory or a discretionary grant.
Mandatory grants are paid to those employers who have adopted and implemented a
work skills plan and may be an amount equivalent to 50% of the total levies paid by the
employer in a particular financial year.
Discretionary grants are at the discretion of the relevant SETA and are in the main paid
for the funding of research, the training of sector specialists, providing learners with work
experience, learnerships and adult basic education and training.
Questions
Question 1
State the purpose for which each of the following bodies has been established and give the
main functions of each:
1.1 the National Skills Authority; (8)
1.2 a SETA; (10)
1.3 skills development institutes; (3)
1.4 National Artisan Moderation Body; and (4)
1.5 the Quality Council for Trades and Occupations. (4)
Question 2
Define and describe the nature of a “learnership agreement”. Include in your answer the
duties of each of the parties to such an agreement. (10)
Question 3
A learner under a learnership agreement is fairly dismissed by his employer for misconduct.
Discuss the consequences of such a dismissal. (8)
Question 4
4.1 Bryan Learner has just completed his school career. He wishes to undergo further
training. Explain to Bryan the different learning programmes the Skills Development
Act provides for. (10)
4.2 Assume that Bryan wishes to qualify as an electrician. Explain to him the education
and training he will have to undergo to become a qualified artisan. (8)
Question 5
Employers are, in terms of the Skills Development Levies Act, obliged to pay skills develop-
ment levies. Explain the following:
5.1 those employers who have to pay levies and those who are exempt from paying levies; (6)
5.2 the amount of levies to be paid; (3)
5.3 when and to whom the levies are payable. (10)
Appendix
ANNEXURE B: LEARNERSHIP REGULATIONS
Learnership Agreement
SETA Logo LEARNERSHIP AGREEMENT
PART A: TERMS AND CONDITIONS OF AGREEMENT

1 Declaration of the parties
We understand that this Agreement is legally binding.
We understand that it is an offence in terms of the Skills Development Act 97 of 1998
(“the Act”) to provide false or misleading information in this Agreement.
We agree to the following rights and duties.
2 Rights and duties of learners, employers and training providers
2.1 Rights of the Learner
The learner has the right to:
2.1.1 receive an induction to the learnership;
2.1.2 be educated and trained under the learnership;
2.1.3 access to the required resources for the achievement of the specified out-
comes for the structured learning component as well as the specified
practical workplace experience activities of the learnership;
2.1.4 be assessed and have access to the assessment results for the structured
learning component as well as the specified practical workplace experi-
ence activities of the learnership;
2.1.5 receive a written statement of results within 21 working days of the final
assessment required in this learnership agreement;
2.1.6 if successful, be awarded a certificate of achievement for the qualification
associated with the learnership within 45 working days of the learner’s
final assessment;
2.1.7 in the case of a section 18 (2) learner, receive the agreed learnership
allowance for the duration of the learnership;
2.1.8 raise grievances in writing with the SETA or the ETQA accredited for the
qualification associated with the learnership concerning any shortcom-
ings in the quality of the education and training under the learnership.
2.2 Duties of the Learner
The learner must:
2.2.1 carry out all occupationally related work for the employer required for
the practical workplace experience activities specified in the learnership;
2.2.2 comply with the employer’s workplace policies and procedures;
2.2.3 be available for, and participate in, all structured learning and practical
workplace experience activities required by the learnership;
2.2.4 attend all theoretical learning sessions and practical learning activities
with the training provider;
2.2.5 complete timesheets and projects and participate in any assessment activ-
ities that are required for the final assessment at the end of the learner-
ship; and
2.2.6 undertake all learning relating to the learnership conscientiously.
2.3 Rights of the Employer
The employer has the right to require the learner to:
2.3.1 perform duties in terms of this Agreement; and
2.3.2 comply with the rules and regulations concerning the employer’s work-
place policies and procedures.
2.4 Duties of the Employer
The employer must:
2.4.1 comply with all duties in terms of the Skills Development Act and applic-
able legislation including:
• Basic Conditions of Employment Act 75 of 1997;
• Labour Relations Act 66 of 1995;
• Employment Equity Act 55 of 1998;
• Occupational Health and Safety Act 85 of 1993 (or Mine Health and
Safety Act 27 of 1996);
• Compensation for Occupational Injuries and Diseases Act 130 of 1993;
• Unemployment Insurance Act 30 of 1996.
2.4.2 provide the facilities and resources required for the specified practical
workplace experience activities of the learnership;
2.4.3 provide the learner with supervision, mentoring and coaching at work;
2.4.4 provide the learner with appropriate education and training to compe-
tently perform the specified workplace experience activities required by
the learnership;
2.4.5 release the learner during normal working hours to attend off-the-job
structured learning required by the learnership;
2.4.6 conduct on-the-job assessment for the specified workplace experience
activities, or cause it to be conducted;
2.4.7 keep up to date records of workplace learning and periodically discuss
progress with the learner and the training provider;
2.4.8 if the learner was not in the employment of the employer at the time of
concluding this Agreement –
• enter into a contract of employment with the learner for the duration
of the learnership;
• advise the learner of the terms and conditions of his or her employ-
ment, including the learner allowance; and
• advise the learner of the employer’s workplace policies and procedures.
2.4.9 pay the learner the agreed learner allowance for the duration of the
learnership;
2.4.10 apply the same disciplinary, grievance and dispute resolution procedures
to the learner as to any other employee;
2.4.11 submit the signed learnership agreement to the SETA for registration.
2.4.12 submit records as required by ETQA body.
2.5 Rights of the Training provider
The training provider has the right to access the learner’s portfolio of evidence
and workplace learning related assessments.
2.6 Duties of the Training provider

The training provider must:
2.6.1 provide the structured learning specified in the learnership;
2.6.2 provide the learner support as required by the learnership;
2.6.3 record, monitor and retain details of the education and training pro-
vided to the learner in terms of the learnership and periodically discuss
progress with the learner and the employer;
2.6.4 conduct off-the-job assessments for the structured learning component
specified in the learnership, or cause it to be conducted;
2.6.5 ensure that the assessment against the outcomes of the qualification asso-
ciated with the learnership is conducted at the end of the learnership;
and
2.6.6 issue a written statement of results in respect of the learner’s final assess-
ment for the qualification associated with the learnership within 21 work-
ing days of the assessment, to the learner, the SETA and the ETQA
accredited for the qualification.
3 Suspension of this agreement
3.1 A SETA may approve the suspension of this agreement if –
3.1.1 the employer and the learner have agreed in writing to suspend the
agreement; or
3.1.2 the employer or the learner has requested, on good course, to suspend
the agreement and the other parties to the learnership agreement have
had opportunity to make presentations as to why the learnership should
not be suspended.
3.2 An application to suspend a learnership agreement must be submitted to the
SETA in writing together with –
3.1.1 a written agreement signed by the employer and the learner setting out
the reasons for the suspension; and
3.1.2 where appropriate the reasons for the suspension and proof that the
other parties to the learnership agreement have had the opportunity to
make presentations as to why the agreement should be suspended.
3.3 All parties to a suspended learnership agreement must take appropriate steps to
reactivate the learnership programme on expiry of the suspension period.
4 Termination of this Agreement
This learnership agreement terminates:
4.1 on the termination date stipulated in Part B of this Agreement; or
4.2 on an earlier date if:
4.2.1 the learner has successfully completed the final assessment and fulfilled
all requirements associated with the specified workplace experience activ-
ities of the learnership;
4.2.2 the learner is fairly dismissed by the employer for a reason related to the
learner’s conduct or capacity as an employee;
4.2.3 the SETA approves the termination of the Agreement in terms of the
Learnership Regulations, 2007.
5 Disputes
5.1 If there is a dispute concerning any of the following matters, it may be referred to
the Commission for Conciliation, Mediation and Arbitration (CCMA):
5.1.1 the interpretation or application of any provision of this Agreement, the
learner’s contract of employment or a sectoral determination made in
terms of section 18 (3) of the Act;
5.1.2 Chapter 4 of the Act;

5.1.3 the termination of this Agreement or, in the case of a section 18 (1)
learner, the learner’s contract of employment.
5.2 If there is a dispute regarding the quality of education and training provided by
the training provider or regarding the quality of the learner’s learning perform-
ance, it may be referred to the ETQA accredited for the learnership qualification
for resolution in accordance with the applicable policies and procedures of the
ETQA.
PART B: DETAILS OF THE LEARNERSHIP AND THE PARTIES TO THIS AGREEMENT
Please take note of the following:

• the learner is not already in the employ of the employer, the learner and
employer must conclude a contract of employment.
• If the learner is a minor then the learner’s parent or guardian must be a
party to this Agreement and must complete section 3. The parent or
guardian ceases to be a party to this Agreement once the learner ceases to
be a minor.
• If a group of employers are party to this Agreement, one of the employers
must perform the function of a lead employer. The lead employer must
complete section 4. Details of the other employers must be attached on a
separate sheet.
• If the employer and the accredited training provider are the same entity,
the employer must complete sections 4 and 5.
• If a group of training providers are party to this Agreement, one of the
providers must perform the function of lead training provider. The lead
training provider must be accredited for the qualification and must com-
plete section 5. Details of the other training providers must be attached
on a separate sheet.
• A copy of the learning programme outline and implementation plan must
be attached.
• If the employer has concluded an agreement with an ESDA in terms of
which the ESDA is to perform some or all of the employer’s obligations or
exercise some or all of the employer’s rights in terms of the learnership
agreement, section 6 must be completed.
1 Learnership details
1.1 Name of learnership:......................................................................................................
1.2 Department of Labour registration number of learnership:.......................................
1.3 Commencement date of learnership agreement: ........................................................
1.4 Termination date of learnership agreement: ...............................................................
1.5 Occupation that this learnership is related to (as per the Organising
Framework of Occupations (OFO): ..............................................................................
1.6 Name of the qualification: .............................................................................................
1.7 SAQA Qualification ID number: ...................................................................................
2 Learner details
2.1 Full name: .......................................................................................................................
2.2 Identity number: .............................................................................................................
2.3 Date of birth:...................................................................................................................
2.4 Sex: Male Female

2.5 Race: African Indian
Coloured White
Other (specify):
2.6 Do you have a disability, as contemplated by the Employment Equity Act 55 of
3
1998?
Yes (specify):............................................. No
2.7 Home address: ................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
2.8 Telephone number: .......................................................................................................
2.9 Postal address (if different from above): ......................................................................
.........................................................................................................................................
.........................................................................................................................................
2.10 E-mail address: ................................................................................................................
2.11 Are you a South African citizen?
No (specify and attach documents indicating your
Yes status, for example: permanent residence, study
permit, etc):
2.12 Highest level qualification:
(Tick the relevant box)
NQF level/nomenclature Other nomenclature
8 Doctoral degrees, PhD
7 Masters degrees
6 4 year Degrees
National diplomas and higher cer-
5
tificates
4
Grade 12, matriculation exemption
Further Education & Training NTC 4
Certificate
3 Grade 11, NTC 3
2 Grade 10, NTC 2
1
Grade 9, School leaving certificate,
General Education & Training NTC 1, ABET level 4
Certificate
2.13 What is the title of your highest qualification?
2.14 Have you previously undertaken a learnership?
Yes (specify title
No
and code): ..................................
________________________
3 The Employment Equity Act defines a disability as a long-term or recurring physical or mental impair-
ment which substantially limits prospects of entry into, or advancement in, employment.
2.15 Were you employed by your employer before concluding this Agreement?
Yes No
2.16 If you were unemployed before concluding this Agreement, state for how long:
.........................................................................................................................................
2.17 If you are employed, when did you start work with your employer?
.........................................................................................................................................
3 Parent or Guardian details
(To be completed if learner is a minor)
3.1 Full name: .......................................................................................................................
3.2 Identity number: .............................................................................................................
3.3 Home address: ................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
3.4 Postal address (if different from above): ......................................................................
.........................................................................................................................................
.........................................................................................................................................
3.5 Telephone number (home and work):.........................................................................
3.6 E-mail address: ................................................................................................................
4 Employer details
4.1 Legal name of employer: ...............................................................................................
4.2 Trading name (if different from above):......................................................................
4.3 Are you liable for the skills development levy?
Yes No
If yes, what is your SDL number:...............................................................
4.4 Name of SETA with which you are registered: .............................................................
4.5 What is the Standard Industrial Classification (SIC) code that applies to your
core business:..................................................................................................................
4.6 Are you acting as the Lead Employer?
Yes No
4.7 Business address: ............................................................................................................
.........................................................................................................................................
.........................................................................................................................................
4.8 Postal address (if different from 4.7): ...........................................................................
.........................................................................................................................................
.........................................................................................................................................
4.9 Name of contact person:................................................................................................
4.10 Telephone No:................................................................................................................
4.11 Fax No: ............................................................................................................................
4.12 E-mail address: ................................................................................................................
5 Training Provider details
5.1 Legal name of Training Provider: .................................................................................
5.3 Are you acting as the Lead Training Provider?

Yes No
5.4 Are you liable for the skills development levy?
Yes No
If yes, what is your SDL number:...............................................................
5.5 What is the Standard Industrial Classification (SIC) code that applies to your core
business: ..........................................................................................................................
5.6 Name of ETQA that has accredited your institution:...................................................
5.7 Accreditation number and review date: ........................................................................
5.8 Business address:
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
5.12 Fax number:....................................................................................................................
5.13 E-mail address: ................................................................................................................
6 ESDA details (if applicable)
6.1 Legal name of ESDA: .....................................................................................................
6.3 Registration number: .....................................................................................................
6.4 Business address:
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
6.8 Fax number:....................................................................................................................
6.9 E-mail address: ................................................................................................................
6.10 If the learner is a section 18 (1) learner, list below the rights and duties of the
employer in terms of the learnership agreement, if any, that are to be exercised
4
by the ESDA as agreed by the employer and the ESDA:
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
________________________
4 If the required information is set out clearly in the agreement concluded between the employer and the
ESDA, reference can be made to the relevant provisions in the agreement.
6.11 If the learner is a section 18 (2) learner, specify below the rights and duties of the
employer in terms of the contract of employment or the learnership agreement, if
5
any, that will be within the responsibility of the employer :
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
.........................................................................................................................................
6.12 Attach a copy of the agreement between the employer and the ESDA.
7 Terms and conditions of employment
7.1 Are the learner’s terms of employment determined by a document of general
application (for example, sectoral determination, bargaining council agreement,
collective agreement):
Yes (specify):................................................ No
7.2 Attach a copy of a document reflecting the learner’s conditions of employment
(for example: contract of employment, written particulars of employment).
8 Signatories
Learner’s signature: Parent or Guardian’s signature
(Only if the learner is a minor)
................................................................... ................................................................
Date: .......................................................... Date: .......................................................
Witness signature: Witness signature:

................................................................... ................................................................
Date: .......................................................... Date: .......................................................
Training Provider or Lead Training

Employer or Lead Employer’s signature
Provider’s signature
................................................................... ................................................................
Date: .......................................................... Date: .......................................................
Witness signature: Witness signature:
................................................................... ................................................................
Date: .......................................................... Date: .......................................................
Official use only
Learnership Agreement Number: .............................................................

Registration date of the Agreement: .............................................................
Signature of SETA Official (Learnership Manager): .............................................................
________________________
5 If the required information is set out clearly in the agreement concluded between the employer and the
ESDA, reference can be made to the relevant provision in the agreement.
TO BE COMPLETED BY EACH TRAINING PROVIDER IF A GROUP OF TRAINING

PROVIDERS IS PARTY TO THE AGREEMENT
Training Provider 1
Legal name of training provider: ................................................................................................
Name of ETQA that has accredited your institution: ................................................................
Accreditation number and review date: .....................................................................................
Name of contact person:..............................................................................................................
Telephone number: .....................................................................................................................
Fax number: .................................................................................................................................
E-mail address:..............................................................................................................................
Signature: ......................................................................................................................................
Date: ..............................................................................................................................................
Training Provider 2
Accreditation number and review date: .....................................................................................
Fax number: .................................................................................................................................
E-mail address:..............................................................................................................................
Signature: ......................................................................................................................................
Date: ..............................................................................................................................................
TO BE COMPLETED BY EACH EMPLOYER IF A GROUP OF EMPLOYERS IS PARTY TO
THE AGREEMENT
Employer 1
Legal name of employer: .............................................................................................................
Fax number: .................................................................................................................................
E-mail address:..............................................................................................................................
Signature: ......................................................................................................................................
Date: ..............................................................................................................................................
Employer 2
Legal name of employer: .............................................................................................................
Fax number: .................................................................................................................................
E-mail address:..............................................................................................................................
Date: ..............................................................................................................................................
9
EMPLOYMENT SERVICES ACT 4 OF 2014
9.1 Introduction
The Employment Services Act 4 of 2014 (ESA) was assented to on 3 April 2014, but came
into operation only on 9 August 2015.
ESA is the product of an in-depth review by the Department of Labour (DoL), with the
assistance of the International Labour Organisation (ILO), into the effectiveness of its pro-
grammes relating to, inter alia, the provision of public employment services and the promo-
tion of employment for work seekers. After comparative studies among countries with similar
economic conditions as South Africa, focus areas were identified and prioritised: public
employment services, labour policy, industrial relations, inspections and enforcement.
The purpose of the Act is to promote employment, improve access to the labour market,
provide opportunities for new entrants to the labour market, assist retrenched employees
and facilitate the employment of foreign nationals (s 2(1)). To achieve these objectives free
public employment services are catered for, schemes are established to promote employ-
ment, private employment agencies are regulated and activities of employment agencies are
coordinated (s 2(2)).
The ultimate goal is to contribute to government’s objective of “more jobs, decent work
and sustainable livelihoods”. Public employment services are well-positioned to play a sig-
nificant role in the promotion and preservation of employment and assisting employers
and employees to adapt to changing labour market conditions. The Act accordingly pro-
vides a policy framework within which public and private employment agencies can work
together to facilitate entry into employment whilst at the same time providing protection to
vulnerable workers.
Prior to ESA employment services and other provisions aimed at facilitating employment
were found in the Skills Development Act 97 of 1998 (SDA). Those have now been removed
and included in ESA.
In order to achieve these goals the Act establishes the Employment Services Board,
Productivity South Africa and Supported Employment Enterprises.
The Director General of the Department of Labour must maintain labour centres, with
suitable personnel and financial resources, to ensure easy access to members of the public
to the public employment services. (s 4)
9.2 Definitions (s 1)
Some of the more important definitions are the following:
“employee” bears the same meaning as defined in section 1 of the Basic Conditions of Employ-
ment Act (see Chapter 3 par 3.4);
“employment services” includes the provision of the following services:
(a) advising or counselling of workers on career choices, either by the provision of information
or other approaches;
219
(b) assessment of work seekers for:

(i) entry or re-entry into the labour market; or
(ii) education and training;
(c) referring work seekers:
(i) to employers to apply for vacancies; or
(ii) to training providers for education and training;
(d) assisting employers:
(i) by providing recruitment and placement services;
(ii) by advising employers on the availability of work seekers with skills that match their
needs;
(e) performing the functions of temporary employment services; and
(f) any other prescribed employment service;
“foreign national” means an individual who is not a South African citizen or does not have a
permanent residence permit issued in terms of the Immigration Act;
“private employment agency” means any person who provides employment services for gain;
“public employment services” means the public employment services the Department of Labour
must provide free of charge to members of the public;
“work opportunity” means a vacancy or opportunity for employment or work experience, self-
employment or community service;
“work scheme” means any programme aimed at assisting people to find or remain in employ-
ment or to set themselves up in self-employment; and
“work seeker” means any person who is looking for work.
9.3 Framework of the Act

The strategic objectives of the Act will be achieved through public employment services,
private employment agencies, Productivity South Africa and the Supported Employment
Enterprises. The Employment Services Board is established as an advisory board to the
Minister.
9.3.1 Public employment services (Ch 2 ss 5–12)

The DoL must provide public employment services free of charge. These services include
matching work seekers with available work opportunities, registering work seekers, register-
ing job vacancies and other work opportunities, facilitating the placing of work seekers with
employers or in other work opportunities, advising work seekers on access to education and
training, facilitating the exchange of information among labour market participants and
facilitating the employment of foreign nationals (s 5(1)).
In order to facilitate the matching of work seekers and work opportunities the DoL may
provide vocational and career counselling, assessment of work seekers to determine suit-
ability and any other related life skills to secure employment (s 5(2)).
The DoL has to maintain an employment information system to monitor, evaluate,
research and analyse trends in the provision of employment services (s 11).
The provision of public employment services is financed from monies defrayed from the
budget vote of the DoL, which may be supplemented by money allocated from the
Unemployment Insurance Fund and the Compensation Fund, registration fees paid by
private employment agencies and grants and donations made to the DoL (s 12(1)).
The financial resources earmarked for public employment services are utilised for the
activities and functions related to the service, as well as for schemes to assist retrenched
workers and work seekers, the rehabilitation and promotion of re-entry into employment of
people disabled as a result of an injury on duty or an occupational disease. The funds may
also be allocated to subsidise organisations and private employment agencies that provide
work opportunities or special projects for vulnerable work seekers (s 12(2)).
Employment Services Act 4 of 2014 221
9.3.2 Private employment agencies (Ch 3 ss 13–19)

Private employment agencies are registered in accordance with criteria determined by the
Minister. These criteria must differentiate between private employment agencies that are
registered as temporary employment services (labour brokers) and those private employ-
ment services that perform other employment services (s 13(2)).
The Minister must appoint a Registrar of private employment agencies (s 13(3)).
Any person wishing to provide private employment services must apply to the Registrar
for registration. Upon registration a certificate of registration is issued. The registration
certificate must specify whether the private employment agency is permitted to perform the
functions of a temporary employment service (labour broker). Where an application for
registration is not successful, the Registrar must provide written reasons to the applicant
(s 13(4)–(6)).
Private employment agencies are prohibited from performing certain acts, such as
performing functions for which they are not registered, falsifying documents and retaining
the original documents of work seekers (s 14).
Private employment agencies may not charge work seekers any fee for services rendered.
This includes making deductions from an employee’s remuneration (e.g. an agency has an
arrangement with its client to deduct an amount from the employee once the employee has
been placed in employment). Any practice by employers or agencies to circumvent this
prohibition is outlawed. Any dispute in this context can be conciliated and arbitrated by the
CCMA or a bargain council with jurisdiction. The Minister can, by way of regulation, permit
the charging of fees in respect of specific categories of employees or for the provision of
specialised services (s 15).
A private employment agency is required to keep a register of work seekers for a period
of at least three years. Information about every work seeker, their placement in employ-
ment and the employer where they were placed needs to be recorded in the register. The
information is confidential and must be safeguarded. It can only be disclosed to prospective
employers and the DoL (ss 16 & 17).
The registration of a private employment agency can be cancelled if it fails to comply
with the requirements of the Act. The Registrar is required to advise the agency in writing
of his intention to cancel its registration. The agency has 30 days within which to make
representations as to why the registration should not be cancelled. The Registrar must con-
sider the representations and notify the agency of his decision. Any person aggrieved by the
decision of the Registrar not to grant registration or to cancel it may approach the Labour
Court within 30 days for a review of the Registrar’s decision (s 18).
9.3.3 Productivity South Africa (Ch 5 ss 31–41)

Productivity South Africa was originally established under the SDA. It is now established
anew in terms of section 31 of the ESA. The functions of Productivity South Africa are, inter
alia, to promote a culture of productivity in workplaces, to measure and evaluate prod-
uctivity in the workplace and to support initiatives aimed at preventing job losses (s 32).
The Board of Productivity South Africa, consisting of seven members appointed by the
Minister (s 33), must report to the Minister on its activities at least once a year and its report
must be tabled in Parliament (s 41).
The Minister may, after consulting the Board of Productivity South Africa, make regu-
lations relating to workplace productivity and competitiveness if necessary or expedient to
do so in order to enable the Board to perform its functions.
9.3.4 Supported Employment Enterprises (Ch 6 ss 42–47)

The Supported Employment Enterprises (SEE) is established as a national government
component to promote work and employment opportunities for persons with disabilities
(s 42). The Minister appoints the CEO of the SEE, who is also the accounting officer (s 44).
The functions of Supported Employment Enterprises include the facilitating of sup-

ported employment, providing work opportunities for persons with disabilities and the
development and implementation of programmes that promote the employability of
persons with temporary and permanent disabilities (s 43).
9.3.5 Employment Services Board (Ch 4 ss 20–30)

The Employment Services Board is established with the primary aim of advising the Minis-
ter on matters such as work opportunities, the regulation of private employment agencies
and the promotion of supported work for persons with disabilities (s 22).
The Employment Services Board comprises an independent chairperson and 12 persons
appointed by the Minister to represent the State, organised labour, organised business and
organisations of community and development interest (s 21).
The Board must report on its activities to the Minister at least once a year (s 30).
9.4 Work schemes (ss 6–7)

The Minister may establish work schemes aimed at enabling the youth and other vulnerable
work seekers to enter or remain in employment or to become self-employed. A person
employed in accordance with such a scheme is subject to employment conditions as
contained in the Basic Conditions of Employment Act 75 of 1997 (BCEA) or any applicable
collective agreement, but the Minister can prescribe the period of employment and deter-
mine the remuneration or other payments for persons working on such a scheme (s 6).
The Minister may also, in consultation with the Employment Services Board, establish
schemes to minimise retrenchments. Such a scheme may provide for turn-around strat-
egies, lay-offs, re-training and alternative employment opportunities (s 7).
9.5 Employment of foreigners (ss 8–9)

Section 8(1) protects the employment of South African citizens and permanent residents by
prohibiting the employment of foreign nationals without a valid work permit (as contem-
plated in the Immigration Act).
The Minister may issue regulations to facilitate the employment of foreign nationals.
These regulations may include measures such as employers having to satisfy themselves that
no South African has the required skills to fill a particular vacancy before recruiting a
foreign national, employers having to make use of public or private employment services to
assist in the recruitment of suitable South African citizens or permanent residents and the
preparation of a skills transfer plan by employers in respect of any position in which a
foreign national is employed (s 8(2)).
A person employed without a valid work permit is not without recourse. Such an
employee may, in terms of section 8(4) of the Act, enforce claims in terms of his contract of
employment or any statute against the employer (or any other person who is liable in terms
of the law).
An employer may not require or permit a foreign national to perform work which is not
authorised by the work permit or which is contrary to the terms of the work permit (s 9).
9.6 Monitoring and enforcement

Monitoring and enforcement of compliance with the provisions of ESA is done in accord-
ance with the Basic Conditions of Employment Act. That means that labour inspectors of
the Department of Labour can call on employers for written undertakings or issue com-
pliance orders (s 49).
Employment Services Act 4 of 2014 223
Contravention of some of the provisions of the ESA constitutes criminal offences. It is,
for example, an offence to obtain any document by means of fraud, to furnish false infor-
mation, to operate a private employment agency without being registered and to employ
foreigners in contravention of the Act. A conviction of any of these offences will invite a
fine or imprisonment (s 50).
In legal proceedings other than criminal proceedings the Labour Court has exclusive
jurisdiction in respect of all matters covered by the Act (save in the case of the charging of
fees or deductions from employees’ remuneration by private employment agencies for
services rendered) (s 48).
Questions
Question 1
Distinguish between public employment services and private employment services. (6)
Question 2
The Employment Services Act establishes a number of bodies to assist with securing
employment for work seekers and vulnerable employees. Briefly state the functions of
each of the following bodies:
2.1 Productivity South Africa; (3)
2.2 Supported Employment Enterprise; (3)
2.3 Employment Services Board. (3)
Question 3
Gonzalez is a foreign national. He does not have a valid work permit. He applies for the position
of a shop assistant in a shoe shop in Gauteng.
3.1 May he be employed? (3)
3.2 Assume that Gonzalez was employed. He worked ten hours overtime in the week 4 to
8 February, but his employer refused to pay him for the overtime. Is he in a position
to enforce any claim against the employer? (3)
PART
3
LABOUR RELATIONS
10
DEVELOPMENT OF SOUTH AFRICAN
LABOUR LAW
10.1 Introduction
With the birth of a new, democratic South Africa it was necessary to reform the labour laws
of the country. Soon after the new Parliament was elected in 1994, the Minister of Labour
initiated a five-year plan to modernise the legal framework and the institutions that regulate
the labour market. The first step in this process was to overhaul the laws regulating labour
relations.
1
The following problems with labour relations laws were experienced at the time:
• the multiplicity of laws governing labour relations created inconsistency, unnecessary
complexity, duplication of resources and jurisdictional confusion;
• the lack of an overall and integrated legislative framework for labour law;
• the contradictions in policy introduced by numerous ad hoc amendments to labour legis-
lation over the years;
• the reliance on post hoc rule-making by the courts under the unfair labour practice juris-
diction;
• the extensive discretion given to administrators and adjudicators;
• the haphazard and unintegrated nature of collective bargaining institutions;
• the ineffectiveness of the conciliation machinery and procedures;
• the lengthy and expensive dispute resolution system;
• the criminal enforcement of labour law and collective agreements; and
• the lack of compliance with the Constitution of the Republic and public international
law.
The only manner in which these problems could be addressed, was to rewrite the Labour
Relations Act with the support of all the social partners.
In the old regime the National Manpower Commission, representing the interests of the
State, employers and employees, conducted investigations and submitted recommendations
to the Minister of Labour on all labour matters. With the advent of the new South Africa it
became evident that a new body was required to address existing problems and to develop
possible solutions in a holistic manner. The new body had to be fully representative of all
the stakeholders to make meaningful discussions and negotiations possible. The first step,
therefore, in the transition of South African labour law was the promulgation of the National
Economic Development and Labour Council Act 35 of 1994.
________________________
1 For a detailed discussion see the Explanatory Memorandum in Government Gazette 16259 of 10 February
1995.
227
10.2 National Economic Development and Labour Council Act

35 of 1994
Organised business, organised labour and government have key roles to play in developing
effective policies with respect to economic and labour matters. In the years before 1994
bodies such as the National Manpower Commission, a statutory body, and the National
Economic Forum, a non-statutory body, played an important role in bringing together
organised business, organised labour and government. The object was to discuss and
negotiate labour matters and policy in the National Manpower Commission and, in the case
of the National Economic Forum, to achieve consensus on general economic policy issues.
To address economic, labour and development issues more effectively, organised busi-
ness, organised labour and government supported the establishment of one statutory body
which would incorporate the activities of the Commission and the Forum and the National
Economic, Development and Labour Council (NEDLAC) was established on 18 February
1995.
NEDLAC does more than any previous institution to bring to the negotiating table man-
dated representatives of business, labour, government and organisations representing com-
munity and development interests. According to section 9(8) of the Act NEDLAC replaces
the National Manpower Commission. All the rights, duties, assets and liabilities, whether
contractually or otherwise obtained or accumulated in connection with matters entrusted to
the Commission passed to NEDLAC on 18 February 1995.
10.2.1 Establishment of NEDLAC
The Act establishes the National Economic, Development and Labour Council (s 2). NED-
LAC is a juristic person, consisting of four chambers and is governed by an executive council.
NEDLAC’s structure can be illustrated as follows:
NATIONAL SUMMIT
• Convened annually by Executive Council – not part
of NEDLAC
• Report back on NEDLAC activities to ensure trans-
parency and obtain inputs
• Composition: maximum of 300 persons
EXECUTIVE COUNCIL
• Meet at least quarterly
• Composition: maximum of 18 representatives from
each constituency
• Receive reports from chambers and conclude agree-
ments between parties
• Duties: to convene an annual national summit of
interested parties; to prepare an annual budget and
annual report; responsible for audited financial
accounts and balance sheets of NEDLAC
MANAGEMENT COMMITTEE
• Composition: all convenors on Executive Council
and chambers
• Oversees and co-ordinates work of NEDLAC
between meetings of Executive Council
continued
Development of South African Labour Law 229
CHAMBERS
• Composition: 6 delegates per constituency
• Drafts reports and makes recommendations to
NEDLAC
FINANCE LABOUR MARKET

TRADE AND
AND • Composition: 6 dele- DEVELOPMENT
INDUSTRY
MONETARY gates each from
organised business,
labour and the State
• Considers all matters
pertaining to the
world of work
• Drafts reports and
makes recommenda-
tions on labour
matters to NEDLAC
Members representing organised business and organised labour are appointed by the Min-
ister from nominations made by the different organisations, while members representing
government are appointed by the President. Members representing community and develop-
ment interests are appointed by the Minister without Portfolio in the Office of the Presi-
2
dent from nominations by democratically constituted organisations. These organisations
represent a significant community interest on a national basis and have a direct interest in
reconstruction and development (s 3).
The constitution of NEDLAC provides, inter alia, for the following: the manner in which
nominations for appointment as members must be done, the criteria by which and manner
in which organised business and labour shall admit members, the removal of members, the
appointment, removal, duties and powers of the chairpersons, office-bearers and officials,
the establishment, composition and functions of the executive council, various chambers
and committees, including the management committee, the convening of, quorum for and
conduct of meetings of the executive council, chambers and committees, the keeping of
minutes and the amendment of the constitution (s 4).
The Executive Council of NEDLAC is established in accordance with the provisions of its
constitution. The council possesses extensive competencies and may, inter alia, exercise and
perform all the powers and functions allocated to NEDLAC, adopt a constitution for NED-
LAC and amend it, establish the four chambers and committees, including a management
committee, to assist it in the exercise of its powers and the performance of its functions.
This council may also conduct any enquiries, develop conventions to regulate its relation-
ship with Parliament and its standing committees, develop rules and protocols for the con-
duct of relations with other institutions, develop codes of conduct to regulate the conduct
of members and representatives and appoint a secretariat for NEDLAC.
10.2.2 Objectives and functions of NEDLAC (s 5)

The Act provides that NEDLAC shall:
(a) strive to promote the goals of economic growth, participation in economic decision-
making and social equity;
________________________
2 See s 3(4). The Ministry without Portfolio was abolished in 1996. Its functions were transferred to the
office of the Deputy President. The Act has not been amended to cater for this change.
(b) seek to reach consensus and conclude agreements on matters pertaining to social and
economic policy;
(c) consider all proposed labour legislation relating to labour market policy before it is
introduced in Parliament;
(d) consider all significant changes to social and economic policy before it is implemented
or introduced in Parliament; and
(e) encourage and promote the formulation of co-ordinated policy on social and economic
matters.
In pursuing its goals, NEDLAC has to conduct the necessary investigations and research on
social and economic matters, keep abreast of international developments in social and
economic policy, continually evaluate the effectiveness of legislation and work in close
co-operation with departments of State, statutory bodies and other forums and non-
governmental agencies engaged in the formulation and the implementation of social and
economic policy.
Questions
Question 1
Briefly discuss the developments which culminated in the establishment of NEDLAC. (8)
Question 2
Discuss NEDLAC’s functions and objectives. (10)
Question 3
A federation of unions, COSAWU, representing 250 000 employees, applied to become an
employee member of NEDLAC, but its application for membership was denied. According
to section 4 of the National Economic Development and Labour Council Act the constitu-
tion of NEDLAC must provide for the manner in which organised labour may nominate
persons for appointment as members and the criteria by which and manner in which
organised labour shall admit federations of trade unions.
The NEDLAC constitution provides for membership of NEDLAC and stipulates that an
application must be referred to the constituency concerned (business, labour or the State)
for that constituency to determine possible membership. COSAWU’s application for mem-
bership was referred to the convenor of the labour constituency. The founding federations
of the labour constituency, COSATU, NACTU and FEDUSA, had informally set as a criter-
ion for membership the requirement that a federation must represent at least 300 000
employees. Because COSAWU represents 250 000 employees its application was turned
down.
Discuss whether NEDLAC or a specific constituency should set out the criteria for admis-
sion. (10)
Hint: Confederation of SA Workers Unions v NEDLAC & Others (2011) 32 ILJ 1831 (SCA).
11
LABOUR RELATIONS ACT 66 OF 1995
11.1 Introduction
The Industrial Conciliation Act 28 of 1956 was enacted to regulate labour relations. It pro-
vided for collective bargaining and dispute resolution, but was applicable to whites in the
private sector only, thus excluding many employees in a variety of sectors. The Act was
amended from time to time and by the late 1970s it had become necessary to take an in-
depth look at the laws regulating labour relations. The Wiehahn Commission was appoint-
ed to investigate labour legislation and to make recommendations on how the laws should
be changed.
Following the Wiehahn Commission’s recommendations, significant changes were intro-
duced in late 1979 and early 1980. The more important changes included changing the
name of the Act from the Industrial Conciliation Act to the Labour Relations Act (LRA),
introducing the concept of “unfair labour practice” into South African Labour Law for the
first time, establishing the Industrial Court and making the Act applicable to all race
groups. The Industrial Court was tasked with the responsibility to develop the concept of
“unfair labour practice”.
These amendments were undoubtedly a leap towards a more encompassing law and a
first step in eliminating racial discrimination. Despite incorporating the new ideas, the Act
was still not adequate in all respects. It remained applicable to the private sector only, with
the result that many categories of employees still did not enjoy the rights and protection
created by the Act. And, the dispute resolution procedures in particular were cumbersome,
time consuming and costly. Subsequent amendments to the Act, including the establish-
ment of a Labour Appeal Court, were not sufficient to satisfy the remaining inadequacies.
The fact that a number of employees were still excluded from the Act gave rise to the
enactment of laws to regulate labour relations in those sectors excluded from the Act. The
Education Labour Relations Act 146 of 1993 (ELRA), the Agricultural Labour Act 147 of
1993 (ALA) and the Public Service Labour Relations Act 102 of 1993 (PSLRA) were prom-
ulgated in 1993. They duplicated to a large extent the provisions of the LRA.
The ELRA was applicable to teachers employed by the Department of Education, that is,
teachers at public schools and colleges. The ALA was applicable to the farming sector, for
the first time making labour relations laws applicable to farm workers. And, the PSLRA was
applicable to the public sector, i.e. the State as employer and all employees in the public
service. Thus, by the end of 1993 the majority of employees were covered by legislation. The
conspicuous exclusions from all the statutes were domestic workers, teachers at private
schools and lecturers at tertiary educational institutions.
The multiplicity of laws and the resultant unnecessary duplication, the cumbersome and
costly dispute resolution procedures and a number of other inadequacies necessitated a
review of legislation governing labour relations. Soon after the birth of the new, democratic
South Africa in 1994 the then Minister of Labour implemented a five-year plan in terms of
which labour legislation was to be overhauled, the Labour Relations Act of 1956 being the
first to receive attention.
A ministerial legal task team was appointed by the Minister of Labour on 8 August 1994
to draft a new Labour Relations Bill. Assisted by the International Labour Organisation
231
(ILO) and specialist practitioners, the task team produced a document for negotiation in
Bill form, accompanied by a detailed explanatory memorandum. The aim was to initiate a
process of public debate and negotiation by all social partners in order to reach consensus
on a new labour relations dispensation for South Africa. The proposals, tabled before NED-
LAC, the Public Service Bargaining Council and the Education Labour Relations Council,
were published in Bill form in the Government Gazette on 10 February 1995, inviting public
comment.
After due process of discussion and negotiation NEDLAC tabled a report on 21 July
1995, recommending the adoption of the draft Bill by the Cabinet, subject to the necessary
amendments occasioned by the agreements reached between the negotiating parties, pub-
lic submissions, the submissions from the Public Service Bargaining Council and the Edu-
cation Labour Relations Council and the redrafting of the Bill into simple language. The
tripartite Committee of Principals appointed by NEDLAC was authorised to consider any
amendments and to be available to Parliament during the legislative process. The Bill was
adopted by Parliament on 13 September 1995 and became the new Labour Relations Act 66
of 1995 (LRA).
The new LRA did not come into operation immediately because new structures had to
be created, such as the Labour Court (taking the place of the Industrial Court), a new
Labour Appeal Court and the Commission for Conciliation, Mediation and Arbitration
(CCMA). After the establishment of the new structures the new LRA finally came into
operation on 11 November 1996.
The new LRA gives effect to the stated goals and principles of the Reconstruction and
Development Programme of the government, ensures that labour legislation complies with
the provisions of the Constitution and brings the South African labour law in line with the
Conventions and recommendations of the ILO. Some of the significant changes brought
about by the 1995 LRA are the following:
• the recognition of employees’ right to strike and employers’ recourse to lock-out;
• the introduction of employee participation in decision-making in the workplace;
• the process of conciliation in an attempt to resolve disputes between an employer and its
employee(s) or a trade union and, if conciliation fails, the arbitration by the CCMA or
bargaining councils or adjudication by the Labour Court of those disputes;
• the establishment of a new specialised court, the Labour Court, and a new Labour
Appeal Court; and
• the old industrial councils became bargaining councils and statutory councils can be
established where no bargaining councils exist.
The main objectives of the LRA are to advance economic development, social justice,
labour peace and the democratisation of the workplace (s 1). These goals are to be reached
by:
• giving effect to the fundamental rights conferred by the Bill of Rights contained in the
Constitution;
• giving effect to obligations incurred by the Republic of South Africa as a member state of
the ILO;
• providing a framework for collective bargaining between trade unions and employers or
employers’ organisations; and
• promoting orderly collective bargaining, collective bargaining at sectoral level, employee
participation in decision-making in the workplace and the effective resolution of labour
disputes.
Since its inception, the 1995 LRA has undergone some changes. Significant amendments
were introduced by the Labour Relations Amendment Act 12 of 2002, which took effect on
1 August 2002. Further important amendments were enacted when the Labour Relations
Amendment Act 6 of 2014 took effect on 1 January 2015. The most recent amendments can
Labour Relations Act 66 of 1995 233
be found in the Labour Relations Amendment Act 8 of 2018, which came into operation on
1 January 2019.
11.2 Application of the LRA (s 2)

The LRA is applicable to every employer and every employee in every undertaking, indus-
try, trade or occupation in South Africa, the only exclusions being:
• members of the National Defence Force;
• members of the State Security Agency.
Because the LRA is applicable to employers and employees (with only the above exclu-
sions), it is necessary to determine who an employer and who an employee is. The Act does
not define “employer”, but describes an “employee” as:
(a) any person, excluding an independent contractor, who works for another person or for the
State and who receives or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an
employer.1
The first part of the definition incorporates the common law contract of locatio conductio
operarum, thus excluding an independent contractor who works in terms of locatio conductio
operis. In SABC v McKenzie [1999]1 BLLR 1 (LAC) the Labour Appeal Court found that “the
first part of the definition has been interpreted to mean a person who works for another in
terms of the common law contract of service”.
The distinction between an employee and a contractor is not always clear, but it is neces-
sary to determine whether a person is an employee in order to establish whether the LRA
and other legislation apply.
An important feature of the ordinary contract of employment (locatio conductio operarum)
is the supervision, authority and control that an employer has over his employee. This is
often referred to as the “control test” and was for many years used to determine whether a
person is an employee or a contractor. However, the control test proved inadequate and in
later years the courts adopted the dominant impression test, which has proved to result in a
more accurate answer. The Labour Appeal Court, in State Information Technology Agency
(SITA) (Pty) Ltd v CCMA [2008] 7 BLLR 611 (LAC), summarised the key elements of the
dominant impression test as, firstly, the employer’s right to supervise and control, secondly
the question as to whether the alleged employee forms an integral part of the organisation
and, thirdly, the extent of the employee’s economic dependence on the employer. Other
cases also indicate that the element of control still plays a significant role in determining
whether a person is an employee – see inter alia Liberty Life Association of Africa Ltd v Niselow
[1996] 7 BLLR 825 (LAC); Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC) and refer to
paragraph 2.2 of Chapter 2 of this publication.
In addition to the tests developed by the courts over the years, the LRA creates a rebut-
table presumption of who an employee is. Section 200A of the LRA (which is mirrored by
s 83A of the BCEA) presumes a person to be an employee if any one (or more) of the
following factors is present and the onus is on the employer to prove the contrary:
(a) is subject to the control or direction of another person (the employer);
(b) works hours that are subject to the control of another person;
(c) forms part of the organisation;
(d) has worked for another person for an average of at least 40 hours per month over the
last three months;
________________________
1 “Employee” is given a different and very specific meaning in the context of a workplace forum (see Ch 5
of the LRA).
(e) is economically dependent on the person for whom he works;

(f) is provided with tools of trade or work equipment by the other person; or
(g) only works for one person (employer).
The presumption created in section 200A is applicable for the purposes of the LRA, any
employment law and section 98A of the Insolvency Act 24 of 1936 (s 200A(1)).
The presumption does not apply to persons who earn in excess of the BCEA threshold,
i.e. the amount determined by the Minister in terms of section 6(3) of the BCEA (currently
R205 433-30) (s 200A(2)).
Where a person in a proposed or existing work arrangement earns an amount equal to
or less than the BCEA threshold any of the parties may approach the CCMA for an advisory
award on whether that person is an employee or not (s 200A(3)).
To further assist with the determination of whether a person is an employee NEDLAC
has issued a Code of Good Practice (in terms of s 200A(4) of the LRA). It is the Code of
Good Practice: Who is an employee and is included in Chapter 2 of this publication.
Returning to the definition of “employee”: persons who do not receive or are not entitled
to receive remuneration, in cash and/or kind, for the work they perform are not consid-
ered “employees”. They are typically the unpaid or “volunteer” workers, working for charit-
able organisations or a family member of an employer who performs services without
payment.
The second part of the definition is wider and does not specifically refer to the require-
ment of remuneration in order to be considered an employee. Persons who receive no
remuneration may therefore conceivably be considered employees; as may, conceivably,
independent contractors and other persons ordinarily not regarded as employees, such as
partners and agents. When interpreting the similarly worded definition of “employee” in
the 1956 LRA our courts traditionally read some limitations into the wording, otherwise any
person who “assists in carrying on the business of the employer” may be regarded as an
employee, such as an accountant or attorney. Consequently, the courts have distinguished
between “assisting in the carrying on or conducting of business” and “performing work or
services which have the effect of providing such assistance”. Persons involved in the latter
category, such as the independent contractor, are thus excluded. Refer to the cases cited in
Chapter 2 of this publication
Included in the definition of “employee” are casual employees, managers and directors
of a company, shop stewards who are employees, migrant workers, probationary employees
and temporary or fixed-term employees.
Although only “employees” enjoy the protection of the LRA, persons who are not employ-
ees derive rights from the LRA in two instances: the right to freedom of association of job
applicants is protected (s 5) and a dismissed employee (i.e. a person who was an employee,
but who no longer is) has recourse to the dispute resolution mechanisms of the LRA (Ch 8
2
of the LRA).
Because “employer” is not defined in the LRA it is necessary to refer to the definition of
“employee” in order to determine who an employer is. An employer is a person who
receives services from an employee or who is assisted in the conduct of its business in return
for remunerating the employee. It has been suggested that an employer is a company or
other person or persons who has control of the undertaking in which the employee is
employed.
________________________
2 Job applicants (i.e. non-employees) also enjoy protection in terms of the Employment Equity Act 55 of
1998. S 9 of the EEA makes the provisions relating to discrimination applicable to job applicants, which
means a person who applies for a position may challenge a non-appointment on the grounds of discrim-
ination. And, in terms of s 79 of the BCEA job applicants and ex-employees enjoy certain rights.
A difficult situation arises where a labour broker (temporary employment services or

TES) provides labour to a client in return for a fee. The client and the TES conclude an
agreement in terms of which the TES will secure employees and make them available to
work at the client’s business. Who then is the employer of the employees?
The LRA, in section 198(2), expressly declares the TES to be the employer and the per-
son whose services have been procured (excluding an independent contractor) is the
employee of the TES. The TES, as employer, is accordingly obliged to comply with employ-
ment conditions contained in bargaining council collective agreements, any applicable
sectoral agreement or the BCEA or an arbitration award that deals with employment condi-
tions. Should the TES contravene any of these, the TES and the client are in solidum liable
(s 198(4)).
This was the relatively uncomplicated position prior to the enactment of the 2014
amendments to the LRA. The position changed when the amendments took effect on
1 January 2015. In terms of the new section 198A, inserted by the amendments, only those
employees who perform an indisputable “temporary service” are the employees of the TES
(if they earn below the BCEA threshold) (s 198A(3)(a)). A “temporary service” means that
the employee works for a client for no longer than three months or as a substitute for an
employee who is temporarily absent or doing work for a period determined as a temporary
service in a bargaining council collective agreement, sectoral determination or ministerial
notice (s 198A(1)). Employees who are not performing a temporary service, as defined, are
“deemed to be the employees of the client and the client is deemed to be the employer”
(s 198A(3)(b)).
The latter phrase, generally referred to as the “deeming provision”, generated immeas-
urable debate and analyses among practitioners, judges, CCMA commissioners and aca-
demics. Some were of the opinion that the client becomes the sole employer of the
employee after three months. The opposite school of thought was that, after three months,
both the TES and the client are the employers of the employee.
Fortunately the courts had occasion to consider and pronounce on the deeming provi-
sion shortly after its enactment. In Assign Services (Pty) Ltd v CCMA & Others [2015] 11 BLLR
1160 (LC) the Labour Court held that the deeming provision does not result in the client
becoming the sole employer of the employee after three months, but is deemed to be the
employer for purposes of the LRA only. For all other purposes the TES remains the
employer. This judgment supports the notion of dual employers.
The Labour Court judgment was overturned on appeal in NUMSA v Assign Services (Pty)
Ltd & Others [2017] 10 BLLR 1008 (LAC). The Labour Appeal Court held that the client
becomes the sole employer and that the TES “drops out of the picture”. The Court voiced
the opinion that the purpose of section 198A is to restrict the employment of more vulner-
able, lower-paid workers by a TES to situations of genuine and relevant temporary work and
to ensure that the deemed employees are fully integrated into the enterprise as employees
of the client. This is done, not by transferring the contract of employment between the TES
and the employee to the client, but by creating a statutory employment relationship
between the client and the placed worker. The Constitutional Court confirmed this deci-
sion in Assign Services (Pty) Ltd v CCMA & Others [2018] 9 BLLR 837 (CC).
11.3 Atypical employment

The older and now repealed statutes distinguished between different kinds of employees.
The 1983 BCEA, for example, distinguished between employees, casual employees, shift
workers, day workers, regular day workers, salesmen, guards, insurance agents and more
and many persons performing work were not considered to be employees at all (e.g. public
service workers and university staff).
No such distinction is found in the current statutes. The LRA, BCEA and other Acts apply
to “employees”, meaning that if an employer-employee relationship exists, the employee
has certain rights and enjoys certain protections. Thus, a person who is employed for a
fixed-term of four months or who works “casually” for one day a week have rights. So does a
person who is employed by a labour broker but is placed to work at the business of the
client of the labour broker.
Problematic, however, is the fact that such employees have little or no job security. The
employee who has been employed for a fixed term loses his job upon expiry of the contract.
Or, if the client of the labour broker does not like an employee, the employee can be
removed at the behest of the client. Aggravating the problem is the fact that employers
frequently employ workers in a manner other than on a permanent basis because they
think they can escape some of the legal provisions and can easily get rid of the employee.
The legislature intervened in 2014 when the LRA was amended in an attempt to halt the
exploitation of these vulnerable workers and to ensure them more job security.
Prior to the 2014 amendments the LRA, in section 198, regulated the employment of
employees by a TES to some extent, but did not specifically cater for part-time employees or
employees on a fixed-term contract. When the 2014 amendments took effect on 1 January
2015 section 198 of the LRA was amended and sections 198A–198C were inserted to further
regulate temporary employment services and to provide for fixed-term contract employees
and part-time employees. A new section 198D was also inserted to provide for dispute
resolution.
It is important to note that sections 198A–198C apply to employees who earn below the
BCEA threshold only (currently R205 433-30). The intention of the legislature was clearly
to provide protection and create more security for the more vulnerable and lower income
employees.
In terms of the pre-amended section 198 the TES employs an employee. The TES is thus
the employer and the person who performs work at a client is the employee of the TES
(s 198(2)). This, of course, excludes independent contractors (s 198(3)). As an employer,
the TES is obliged to observe all conditions of employment contained in the BCEA, a col-
lective agreement or sectoral determination or an arbitration award that deals with employ-
ment conditions. Should the TES contravene any of these provisions the TES and the client
are jointly and severally liable (s 198(4)).
These provisions have been retained, but the amendments added the following to sec-
tion 198:
• where a TES and its client are jointly and severally liable in terms of section 198(4) or
where the client is deemed to be the employer of the employee in terms of section
198A(3) (see below), an employee is entitled to institute proceedings against either the
TES or the client or both. Similarly, a labour inspector who is enforcing compliance may
secure compliance against either the TES or the client or against both and any order or
award made against the TES or the client may be enforced against either of them
(s 198(4A));
• a TES must provide an employee assigned to a client with written particulars of employ-
ment in accordance with section 29 of the BCEA (s 198(4B));
• a TES may not employ an employee on terms and conditions of employment contrary to
the LRA or any other employment law or contrary to a sectoral determination or bar-
gaining council collective agreement applicable to the client (s 198(4C));
• in any proceedings the Labour Court or an arbitrator may determine whether a pro-
vision in an employment contract or the contract between a TES and its client complies
with the LRA, a sectoral determination or an applicable bargaining council agreement
(s 198(4E)).
The amendments also added a section 198(4F) in terms of which a person may not per-
form the functions of a TES unless registered. This is the only, of all the 2014 amendments,
that has not yet come into force.
Section 198A is applicable only to TES employees who earn below the BCEA threshold.
Employees who are employed by a TES and who perform a “temporary service” for a client
of the TES is the employee of the TES (s 198A(3)(a)).
A “temporary service” is defined as follows (s 198A(1)):
• work for a client not exceeding three months in duration;
• work as a substitute for an employee of the client who is temporarily absent; or
• a category of work and for a period of time determined as a temporary service in a
bargaining council collective agreement, sectoral determination or ministerial notice.
If the employee is not performing temporary services, as defined, he is deemed to be the
employee of the client and employed on an indefinite basis (s 198A(3)(b)). See the judg-
ment in Assign Services (above). He must be treated on the whole not less favourably than
the employees of the client who perform the same or similar work, unless there is a justifi-
3
able reason for different treatment (s 198A(5)).
The test is thus, and the distinction is to be drawn between, the employee who performs
a genuine temporary service and the one who performs services that may prima facie appear
to be of a temporary nature, but which are not defined as a temporary service.
A situation often encountered in practice is that a TES employee works for a client for
more than three months. If the deployment to the client cannot be defined as a “temporary
service” the deeming provision is triggered. If, for example, the TES employee works for the
client for four months to stand in for an employee who is on maternity leave, it qualifies as
a temporary service and the TES is the employer. If, on the other hand, the TES employee
works for the client for four months with no reason attached to the duration of his
employment (and not sanctioned by a collective agreement, etc.), the client is deemed to
be the employer and the employee is deemed to be a permanent employee (unless on a
fixed-term contract), enjoying the same treatment as other permanent employees.
In the event of a TES terminating the services of the employee, at the instance of the
TES or of the client, in order to avoid the deeming provision in section 198A the termin-
ation constitutes a dismissal (s 198A(4)).
Section 198B provides for fixed-term contracts concluded with employees who earn
below the BCEA threshold. For the purposes of this section a fixed-term contract is a
contract of employment that terminates on the occurrence of a specified event, on the
completion of a specified task or project or on a fixed date (other than the normal or
agreed retirement age) (s 198B(1)).
Section 198B does not apply to employers who employ fewer than ten employees or who
employ fewer than 50 employees and whose business has been in operation for less than
two years (unless the employer conducts more than one business or the business was
formed by the division or dissolution of an existing business). Section 198B is also not
applicable to employees who are engaged in terms of a fixed-term contract permitted by
statute or by a sectoral determination or collective agreement (s 198B(2)).
An employee can be employed for longer than three months only if the nature of the
work is of a limited or definite duration or if the employer can demonstrate any other
justifiable reason for fixing the term of the contract, such as that the employee is replacing
a temporarily absent employee, is engaged on account of a temporary increase in work
volume or to perform seasonal work or is a student who is employed to gain practical
experience (s 198B(4)).
________________________
3 In terms of the new s 198D(2) a “justifiable reason” includes seniority, experience, length of service,
merit, the quality or quantity of work and other reasons that are not prohibited in terms of s 6(1) of the
EEA.
If the work is not of a limited nature or the employer cannot demonstrate a justifiable
reason for fixing the term of the contract, the employee is deemed to have been employed
for an indefinite period and must be treated on the whole not less favourably than perma-
nent employees who perform similar work (s 198B(5) & (8)). An employee on a fixed-term
contract must be afforded the same opportunities to apply for vacancies as other employees
may have (s 198B(9)).
If a fixed-term contract of longer than 24 months is justifiable the employer must, on
expiry of the contract and subject to any applicable collective agreement, pay the employee
one week’s remuneration for each completed year of the contract (s 198B(10)). The
employer is not obliged to effect said payment if, before the expiry of the contract, it offers
the employee alternative employment or procures employment elsewhere on similar terms
and conditions which employment commences no later than 30 days after expiry of the
contract (s 198B(11)).
An offer of employment on a fixed term or the renewal of a fixed-term contract must be
in writing and state the reasons for the limited-duration contract (s 198B(6)).
Section 198C regulates part-time employment of employees who earn below the BCEA
threshold. For the purposes of this section a part-time employee is an employee who is
remunerated wholly or partly by reference to time worked and who works fewer hours than
a comparable full-time employee (s 198C(1)).
Section 198C does not apply to employers who employ fewer than ten employees or who
employ fewer than 50 employees and whose business has been in operation for less than
two years (unless they conduct more than one business or the business was formed by the
division or dissolution of an existing business). Section 198C also does not apply to employ-
ees who work less than 24 hours per month or during an employee’s first three months of
continuous employment with an employer (s 198C(2)).
Part-time employees must on the whole be treated not less favourably than comparable
full-time employees doing similar work. They must be afforded access to training and skills
development and given an opportunity to apply for vacancies as full-time employees
(s 198C(3)).
Section 198D provides for the conciliation and arbitration of disputes concerning the
interpretation or application of sections 198A–198C. The dispute must be referred for con-
ciliation to the CCMA (or a bargaining council with jurisdiction) within six months, unless
the dispute is a dismissal as contemplated in section 198A(4), which must be referred with-
in 30 days. If conciliation does not resolve the dispute, the matter may be referred to arbi-
tration within 90 days.
Questions
Question 1
Give a detailed discussion of the meaning of “employee” in terms of the Labour Relations
Act of 1995 (LRA). (20)
Question 2
Briefly explain whether the LRA is applicable to the following persons:
2.1 Richard is a civil engineer. The Eastern Cape provincial administration concludes a
contract with him in terms of which he has to design and build a new bridge across
the Bushman’s River; (2)
2.2 Xoliswa works as a volunteer for an NGO. She does not receive any payment for her
services; (2)
2.3 Ravish is a student and works as a waiter in a restaurant on Saturdays and Sundays to
earn money to pay for his studies. At the restaurant he is called a “casual employee”; (2)
2.4 Jonathan is a general in the National Defence Force; (2)

2.5 Mr Van der Merwe is the Managing Director of a large insurance company and earns
R800 000 per year; (2)
2.6 Ben and Thandi both live in Johannesburg and are employed by a private airline
company registered in Namibia. The company flies it planes to African countries and
only on charter. When a plane is chartered Ben is the pilot and Thandi the flight
attendant on the flight. They get paid per flight in US dollars. (2)
Hint: Kleinhans v Parmalat SA (Pty) Ltd [2002] 9 BLLR 879 (LC); Moslemany v
Unilever PLC & Another [2006] 12 BLLR 1167 (LC); Astral Operations Ltd v Parry
(2008) 29 ILJ 2668 (LAC); Kruse v Gijima AST (Pty) Ltd [2010] JOL 24998 (LC).
2.7 Jade is employed by the Moroccan embassy and works at the embassy’s offices in
Pretoria. (2)
Hint: Ss 2 & 5 of the Foreign States Immunities Act 87 of 1981; Nobela v Consulate
General USA [1999] 1 BLLR 31 (LC).
Question 3
Bridge Builders (Pty) Ltd is a civil engineering and construction company with some 80
permanent staff. From time to time, depending on projects awarded to Bridge Builders,
additional staff is required. Bridge Builders then contacts a temporary employment service,
Staffsourcing CC, to supply additional labour. Early in 2018 Bridge Builders had more pro-
jects than usual and Staffsourcing was asked to make additional employees available. Staff-
sourcing assigned ten of its general labourers “to help out” at Bridge Builders. They were
not told how long they would be helping out at Bridge Builders. They worked 40 hours per
week and earned R1 500 per week. More projects were awarded to Bridge Builders and the
ten labourers ended up working at Bridge Builders for almost five months, when they were
told that their services would no longer be required. They approached their union for
advice.
3.1 Discuss the legal position of the ten labourers, with specific reference to who their
employer is. (15)
Hint: Section 198A of the LRA; Assign Services (Pty) Ltd v Krost Shelving & Racking
(Pty) Ltd & Another [2015] 9 BALR 940 (CCMA); Assign Services (Pty) Ltd v CCMA
& Others [2015] 11 BLLR 1160 (LC); NUMSA v Assign Services & Others [2017] 10
BLLR 1008 (LAC); Assign Services (Pty) Ltd v Krost Shelving & Racking (Pty) Ltd &
Others [2018] 9 BLLR 837 (CC).
3.2 The ten labourers, with the assistance of their union, referred a dispute to the Civil
Engineering Bargaining Council. Explain who must be cited as the respondent and
against whom the arbitration award can be made. (5)
Hint: S 198(4) & (4A).
3.3 Assume that, when the labourers were placed to help out at Bridge Builders, they
were given written contracts in terms of which they would be employed to help out
on one specific project only and that their services would no longer be required once
that project had been completed. The project finished five months after they had
started at Bridge Builders. Discuss their legal position. (10)
Hint: Section 198B.
3.4 Assume that it was not labourers, but engineers earning R40 000 per month who were
assigned to work at Bridge Builders. What is their legal position? (10)
Question 4
By inserting sections 198A–198C into the LRA the legislature attempted to ensure better
job security for lower-income employees who are frequently employed on a temporary basis
for longer than three months. With this in mind, discuss the following:
4.1 the meaning of a “temporary service”, as contemplated in the context of TES em-
ployees; (4)
4.2 the meaning of a “fixed-term contract”, as contemplated in section 198B of the LRA;
(4)
4.3 the meaning of a “part-time employee”, as contemplated in section 198C of the LRA;
(4)
4.4 justifiable reasons for employing a person longer than three months on a limited
duration. (8)
12
FRAMEWORK OF THE LABOUR RELATIONS ACT
12.1 Introduction
The Labour Relations Act (LRA) is certainly the most important piece of labour legislation
on the statute book. In addressing the problems experienced with the LRA of 1956, the LRA
of 1995 makes provision for entirely new structures and procedures.
Structures created by the 1995 Act for the purpose of collective bargaining are bargaining
and statutory councils. These councils are responsible for dispute resolution, together with
the CCMA and the Labour Courts. To promote worker participation in decision-making in
the workplace, the LRA provides for the establishment of workplace forums.
The structures created by the LRA for collective bargaining and dispute resolution can be
illustrated as follows:
Labour Appeal Court

Labour Court
CCMA
Dispute resolution Collective bargaining
Bargaining councils Consultation

Statutory councils Joint decision-making
Workplace forum
Trade union Organisational rights Employers’ organisation
Freedom of association
Employees Employer
241
In simplified form the structures for collective bargaining are the following:
Bargaining council*
Sector-/industry-
level bargaining
Trade union Employers’ organisation
Plant-/enterprise-level
Trade union Employer bargaining
* A statutory council may be established in sectors and areas where no bargaining councils exist. The
powers and functions of statutory councils may be extended to include the functions of a bargain-
ing council.
The structures for dispute resolution are as follows:
Labour Appeal Court Labour Appeal Court
Arbitration Adjudication Arbitration Adjudication
Council Labour Court CCMA Labour Court
No resolution No resolution
Bargaining council OR CCMA*

Statutory council
Dispute
* Some disputes must be referred to the CCMA for conciliation and arbitration even though a bar-
gaining council is in existence, such as dispute about organisational rights, workplace forums, dis-
putes about the interpretation or application of agency and closed shop agreements and ministerial
determinations, demarcation of sectors and areas of councils, etc. See par 19.4.
12.2 Trade unions and employers’ organisations (Ch 6 ss 95–106)

A trade union is defined as “an association of employees whose principle purpose is to regu-
late relations between employees and employers, including any employers’ organisations”.
Similarly, an employers’ organisation is “any number of employers associated together for
the purpose, whether by itself or with other purposes, of regulating relations between
employers and employees or trade unions” (s 213).
Registration of a trade union or an employers’ organisation is required in order to exer-
cise the rights contained in the Act. The requirements which must be met for registration
are found in section 95(1)–(4) and are:
• the name must not be misleading or cause confusion;
Framework of the Labour Relations Act 243
• the constitution must meet the requirements of the Act;

• it must have an address in the Republic;
• it must be a genuine trade union or employers’ organisation in conformity with guide-
lines laid down by the Minister in consultation with NEDLAC; and
• the trade union must be independent. A trade union is independent if it is not under
the direct control of any employers’ organisation and if it is free of any interference or
influence of any kind from any employer or employers’ organisation.
The constitution of every trade union or employers’ organisation that applies for registration
must make provision for, inter alia, the qualifications for and termination of membership,
membership fees, the rules for the convening and conducting of meetings, the procedure
1
for the nomination and election of office-bearers and officials, the conducting of ballots,
the banking and investing of money and a procedure for the changing of its constitution
(s 95(5)). A constitution may not include any provision that discriminates directly or indi-
rectly against any person on the grounds of race or gender (s 95(6)).
Any trade union or employers’ organisation may apply for registration by submitting to
the Registrar the prescribed application form, as well as a copy of its constitution and any
further information that the Registrar may require. If the application for registration is in
compliance with the requirements set out in the LRA, the Registrar must register the appli-
cant by entering its name in the register of trade unions or employers’ organisations. Notice
thereof is given in the Government Gazette (s 96).
After registration the Registrar must issue a certificate of registration in the applicant’s
name and send the certificate, together with a certified copy of the registered constitution,
to the applicant (s 96(7)). Upon registration the voluntary association becomes a body
corporate, enabling it, inter alia, to sue and be sued in its own name. Persons who are
members, office bearers, officials or representatives of a trade union or employers’ organ-
isation are not personally liable for any loss caused to others if the member, official, etc.,
acted in good faith (s 97).
If registration is refused, any aggrieved person may demand in writing that the Registrar
provide written reasons for his decision. Irrespective of whether reasons are requested, the
aggrieved party may within 60 days appeal to the Labour Court against the refusal (or can-
cellation) of registration (s 111).
Every registered trade union and employers’ organisation must keep books and records
of its income, expenditure, assets and liabilities, prepare financial statements at the end of
each financial year and arrange for an annual audit of its books and records of account and
its financial statements. These financial statements and the auditor’s report must be made
available to the members for inspection and must also be submitted at a meeting of mem-
bers. A list of members must be kept, as must minutes of every meeting and all ballot papers. A
statement showing the number of members as well as a certified copy of the auditor’s report
and of the financial statements must be submitted to the Registrar annually (ss 98–100).
The registration of a union or employers’ organisation will be cancelled if it has been
ordered to wind up or, in the case of a trade union, the Labour Court has declared the
union no longer independent (s 106).
In terms of section 103A an administrator may be appointed if it is just and equitable to
do so and if a trade union or an employers’ organisation fails materially to perform its
functions or if there is serious mismanagement of its finances. The trade union or employ-
ers’ organisation or the Registrar may apply for the appointment of an administrator.
The Registrar may cancel the registration of a trade union or an employers’ organisation
if the Registrar: (a) is satisfied that the trade union or employers’ organisation is not or has
________________________
1 “Ballot” means any system of voting by members that is recorded in secret. The Minister may publish
guidelines for a system of voting – s 95(8) & (9).
ceased to function as a genuine trade union or employers’ organisations; or (b) has issued a
written notice requiring the trade union or employers’ organisation to keep the necessary
financial documentation, member information and to submit the necessary information to
the Registrar within a period of 60 days of the notice and has, despite the notice, not com-
plied with the above-mentioned requirements. This can be done only if the Registrar has
published a notice in the Government Gazette at least 60 days prior to the cancellation. The
notice must contain the intention of the Registrar to cancel the registration of the trade
union or employers’ organisation and invite them or any other interested parties to make
written representations as to why the registration should not be cancelled (s 106(2A).
12.3 Bargaining councils (Ch 3 Part C, D & F)

Bargaining councils replace the old industrial councils. Bargaining councils have, as their
predecessors, collective bargaining and dispute resolution as their main functions, but
enjoy extended powers and functions under the LRA of 1995. All industrial councils regis-
tered in terms of the 1956 Act are deemed to be bargaining councils and the Registrar must
enter their names in the register of councils.
12.3.1 Establishment of a bargaining council

One or more registered trade unions on the one hand and one or more registered employ-
ers’ organisations and/or the State on the other may establish a bargaining council for a
specific sector and area (s 27). This is done by adopting a constitution and obtaining regis-
tration from the Registrar of Labour Relations. In other words, three aspects play a role in
the formation of a council: (a) the parties; (b) the constitution; and (c) registration.
Parties: It is important to note that only registered trade unions and registered employers’
organisation may be parties to or members of a council (s 27). In addition to the founding
parties of the council, other registered unions and employers’ organisations may become
parties to the council by submitting to the council a written application, together with their
constitution and registration certificate. The council has 90 days to decide whether or not
to grant the application and to advise the applicant of its decision. Failure to notify the
applicant is tantamount to a refusal of the application. If admission is refused, written
reasons must be supplied within 30 days. The applicant who is refused admission may
approach the Labour Court for an order to be admitted as a party to the council (s 56).
Constitution: The constitution of the council must provide for equal representation, which
means that one half of the members must be elected by the employer-parties to the council
and the other half by the trade union-parties. The constitution must further provide for the
appointment of alternates to the representatives; representation of small and medium
enterprises; the conduct of meetings, including the quorum and minutes to be kept; the cir-
cumstances and manner in which representatives must vacate their seats and the procedure
for replacing them; the manner in which decisions are to be made; the appointment, duties
and removal of office-bearers and officials; arbitration of any dispute over the interpretation
or application of the constitution; the procedure to be followed when dealing with disputes
between the parties to the council; the procedure for exemption from collective agreements;
the admission of additional parties to the council; the purpose for which funds may be used
and the winding-up of the council (s 30). A council may resolve to amend its constitution or
its name (s 57) or apply to have its registered scope varied (s 58).
Registration: The parties who wish to establish a bargaining council apply for registration by
submitting to the Registrar the completed application form, together with a copy of its con-
stitution. The Registrar will invite objections from the public by way of a notice in the Gov-
ernment Gazette. A copy of the notice must be submitted to NEDLAC. The application and
any objections thereto are then forwarded to NEDLAC, who has 90 days to consider and
demarcate the appropriate sector and area in respect of which the bargaining council is to
be registered. Upon receipt of NEDLAC’s decision, the Registrar considers the application
and registers the council if all legal requirements have been met. In order to qualify for
registration the parties to the council must be sufficiently representative of the specific sec-
tor and area, and there must be no other council registered for that sector and area. The
name of the council is then entered into the register of councils and a registration certificate
is issued. The certificate determines the scope of the council’s jurisdiction. Upon registration
the council becomes a body corporate. If the Registrar is not satisfied with the application,
he must give the applicant a period of 30 days to meet the requirements for registration,
failing which registration will be refused (s 29).
Cancellation of registration: The Registrar may cancel the registration of a council if he be-
lieves that the council has ceased to perform its functions or has ceased to be representa-
tive. Registration must be cancelled if the Labour Court has ordered the winding-up of the
council. The Labour Court will issue such an order if the council has resolved to wind up its
affairs or if it is unable to continue to function for any reason that cannot be remedied. A
significant consequence of the cancellation of registration is that collective agreements of
the council lapse 60 days after the cancellation of registration, except collective agreements
that regulate conditions of employment. The latter remain in force for one year after the
date the council’s registration was cancelled or until the expiry of the agreement, if earlier
(s 60).
A council is obliged to provide the Registrar with the names and addresses of its national
office bearers within 30 days after their election. Certified copies of every collective agree-
ment and details of the admission and resignation of parties to the council must be provided
to the CCMA. An annual report must be submitted to the Registrar, containing information
on the number of employees employed by small enterprises within the registered scope of
the council and the number of exceptions grated to small enterprises (s 54).
Every council must keep record of its income, expenditure, assets and liabilities and its
financial statements must be audited annually. Certified copies of the financial statements
and the auditor’s report must be sent to the Registrar and must be made available to the
parties to the council (s 53).
12.3.2 Functions of bargaining councils (s 28)

The powers and functions of a bargaining council are:
(a) to conclude and enforce collective agreements;
(b) to prevent and resolve labour disputes;
(c) to establish and administer a fund to be used for resolving disputes;
(d) to promote, establish and administer various funds and schemes like training and edu-
cation schemes and pension, provident and medical aid funds for the benefit of the
parties;
(e) to submit proposals to NEDLAC on policy and legislation that may affect the sector
and area;
(f) to determine by collective agreement the matters which may not be an issue in dispute
for the purpose of a strike or a lock-out at the workplace;
(g) to confer on workplace forums additional matters for consultation;
(h) to provide industrial support services within the sector; and
(i) to extend the services and functions of the council to workers in the informal sector
and home workers.
A bargaining council may apply to the Minister to have designated agents appointed to
assist with the monitoring and enforcement of the council’s collective agreements (s 33).
12.3.3 Bargaining councils in the public service (s 35)

The Public Service Bargaining Council was established under the now repealed Public Ser-
vice Labour Relations Act of 1993 (PSLRA) to make collective bargaining at central and
departmental levels possible. It consisted of a chamber at central level and departmental
chambers for each department. The main functions of each of these chambers included the
negotiation of agreements on matters of mutual interest and the resolution of disputes.
When the LRA of 1995 took effect, the PSLRA was repealed and in consequence the Public
Service Bargaining Council was abolished. The Public Service Co-ordinating Bargaining
Council, created by section 35 of the 1995 LRA, took its place.
The Education Labour Relations Council (ELRC) was established under the erstwhile
Education Labour Relations Act and was responsible for negotiating agreements and
resolving disputes in the public education sector. The ELRC was retained under the LRA of
1995.
The National Negotiating Forum was established under the South African Police Service
Labour Relations Regulations for the police services, but it was abolished when the 1995
LRA came into operation.
In terms of section 35 of the LRA of 1995 a bargaining council for the public service as a
whole is established, known as the Public Service Co-ordinating Bargaining Council
(PSCBC). The constitution of the PSCBC is found in Schedule 1 to the Act. The PSCBC
may perform all functions of a bargaining council in respect of those matters that:
• are regulated by uniform rules, norms and standards that apply across the public service;
or
• apply to terms and conditions of service that apply to two or more sectors within the
public service; or
• are assigned to the State as employer in respect of the public service that are not
assigned to the State as employer in any other sector (s 36(2)).
The PSCBC may, in terms of section 37, designate a sector in the public service for the
establishment of a bargaining council. Such a bargaining council must be established in
terms of the PSCBC’s constitution (Schedule 1). Four sectors in the public sector have been
identified for which bargaining councils have been established and they became operative
in July 2000. The councils in the public sector are:
• the PSCBC;
• the Public Health and Social Development Sector Bargaining Council (PHSDSBC) with
jurisdiction in the health and social development sectors;
• the ELRC, which was established in terms of the Education Labour Relations Act and
which is now considered to be a council established in terms of the 1995 LRA;
• the Safety and Security Sectoral Bargaining Council (SSSBC), with jurisdiction in safety
and security (SAPS), taking the place of the old Negotiating Forum for SAPS; and
• the General Public Service Sectoral Bargaining Council (GPSSBC) with jurisdiction in
the rest of the public service.
The four sectoral councils have exclusive jurisdiction in respect of matters that are specific
to their sectors and have the authority to conclude collective agreements and resolve labour
disputes in those sectors. Thus, if a nurse employed by the Department of Health, for
example, has a dispute with the Department as employer, he will have to refer the dispute
to the PHSDSBC. Similarly, an educator (teacher) at a public school who is an educator
employed by the Department of Basic Education will have to refer his dispute to the ELRC.
Note that the ELRC has jurisdiction over educators only and then only over those employed
by the Department. A dispute raised by an employee other than an educator employed by
the Department of Basic Education, such as an administrative clerk, cannot be referred to
the ELRC; it must be referred to the GPSSBC. Teachers who have been appointed by the
governing body of a school are not employees of the Department and must refer their
disputes to the CCMA. Members of SAPS – that is, policemen and policewomen, not adminis-
trative staff – must refer their disputes to the SSSBC. Employees in government depart-
ments other than those already mentioned must refer their disputes to the GPSSBC, save
for health workers in departments other than the Department of Health who must refer
their disputes to the PHSDSBC.
If there is a jurisdictional dispute between two or more bargaining councils in the public
sector, including the PSCBC, any party to the dispute may refer it to the CCMA for concilia-
tion and arbitration (s 38).
12.4 Statutory councils (ss 39–48)

12.4.1 Establishment and registration of statutory councils
A statutory council may be established in a sector and area where no bargaining council
exists. A registered trade union or two or more registered trade unions acting together,
whose members constitute at least 30% of the employees in a sector and area, may apply to
the Registrar for the establishment of a statutory council. If the applicant is representative
of the sector and area as determined by NEDLAC or the Minister and there is no council
registered for that sector and area, the Registrar must, by notice in the Government Gazette,
establish the statutory council for that specific sector and area. Alternatively, a registered
employers’ organisation, or two or more registered employers’ organisations acting jointly,
whose members employ at least 30% of the employees in a sector and area may bring such
an application.
The notice that appears in the Government Gazette must invite registered trade unions and
registered employers’ organisations in that sector and area to attend a meeting and must
also invite nominations for representatives on the statutory council. At the meeting, chaired
by a CCMA commissioner, an agreement must be concluded with regard to the parties to
the statutory council and a constitution for the council. If an agreement is concluded and
the Minister is satisfied that all the interested parties have been included and the constitu-
tion meets the requirements of the Act, he may advise the Registrar to register the council.
The Registrar registers the statutory council by entering its name in the register of councils.
A certificate of registration, which determines the registered scope of the council, is issued.
If no agreement can be concluded in joint or separate meetings of the registered trade
unions and employers’ organisations, the Minister must admit parties to the statutory coun-
cil, taking into account factors such as the number of representatives, proportional repre-
sentation and the interests of small and medium enterprises. The Minister, after consulting
with the CCMA, must also appoint suitable persons as representatives and alternates, taking
into account the nominations received.
A statutory council may change its status by applying to the Registrar to be registered as a
bargaining council.
12.4.2 Powers and functions of statutory councils

The powers and functions of a statutory council are:
(a) to promote dispute resolution functions;
(b) to promote and establish training and education schemes;
(c) to establish and administer pension, provident, medical aid, sick pay, holiday and un-
employment schemes or funds or any similar schemes or funds for the benefit of one
or more of the parties to the statutory council or their members; and
(d) to conclude collective agreements to give effect to the matters mentioned above.
A statutory council may, by concluding a collective agreement, extend its powers and func-
tions to include any of the functions of a bargaining council.
If a statutory council is not sufficiently representative within its registered scope, the Min-
ister must treat a collective agreement of the council as a recommendation made by the
Employment Conditions Commission in terms of the Basic Conditions of Employment Act.
The Minister may promulgate the statutory council’s recommendations as a determination
under that Act. To defray the operational costs of the statutory council the Minister may in
a determination impose a levy on all employers and employees in the registered scope of
the statutory council.
Any disputes about the interpretation or application of determinations may be referred

by any party to the CCMA. The Commission must attempt to resolve the dispute through
conciliation, failing which any party may request that the dispute be resolved through arbi-
tration.
12.5 Commission for Conciliation, Mediation and Arbitration

(CCMA)
12.5.1 Establishment of the CCMA

The Commission for Conciliation, Mediation and Arbitration (the “Commission” or
CCMA) is established by the Act as an independent juristic person with jurisdiction in all
the provinces of the Republic. The Commission must maintain a provincial office in each
province and as many regional offices as it considers necessary (ss 112–114).
The CCMA is governed by a governing body, consisting of the Director of the CCMA and
ten members nominated by NEDLAC and appointed by the Minister. One of the ten mem-
bers is the chairperson of the governing body; the other nine members represent in equal
numbers organised business, organised labour and the State (s 116).
The Director of the CCMA is appointed by the governing body and manages and directs
the activities of the CCMA (s 118).
The governing body also appoints as many commissioners as it may deem necessary to
perform the functions of the CCMA, typically dispute resolution functions (conciliations
and arbitrations) and training. Commissioners are appointed as full- or part-time commis-
sioners or senior commissioners and serve for a fixed term (s 117).
The Minister and Parliament allocate monies to fund the CCMA (s122).
The CCMA’s services are free to the public and the CCMA may, in terms of section 123,
charge a fee in only a limited number of instances. This means that parties to a dispute do
not, generally, have to pay any fees to the CCMA for the conciliation or arbitration of their
dispute. Fees may be charged only where the LRA allows such, for example, where a regis-
tered trade union or employers’ organisation requests the CCMA to conduct or scrutinise
an election or ballot, where advice or training is provided and where the CCMA conducts
2
arbitrations in terms of section 147. The fees the CCMA may charge are determined by the
governing body and published in the Government Gazette as the CCMA’s table of tariffs.
12.5.2 Functions of the CCMA (s 115)

The functions of the CCMA are:
• to resolve any dispute referred to it through conciliation and, if unsuccessful, through
arbitration. The CCMA must arbitrate the dispute if:
– the Act requires arbitration and any party to the dispute has requested that the dis-
pute be resolved through arbitration; or
– all the parties to a dispute in respect of which the Labour Court has jurisdiction con-
sent in writing to arbitration under the auspices of the CCMA;
• to assist parties in the establishment of workplace forums;
• to advise a party to a dispute about the procedure to follow;
• to assist a party to a dispute to obtain legal advice;
________________________
2 S 147 provides that, where a dispute should have been referred to a bargaining council or private
agency but was erroneously referred to the CCMA, the CCMA can decide to resolve the dispute through
conciliation and arbitration in exceptional circumstances.
• to assist employees who earn below the BCEA threshold (determined by the Minister in
terms of section 6(3) of the BCEA) with the service of documents in conciliation and
arbitration proceedings. Although the CCMA is required to assist such employees, an
employee remains responsible for proper service of documents;
• to accredit councils or private agencies and subsidise such accredited councils or private
agencies;
• to conduct, oversee or scrutinise any election or ballot;
• to conduct and publish research into matters relevant to its functions;
• to compile and publish information and statistics about its activities;
• to offer to resolve a dispute that has not been referred to it through conciliation; and
• to publish guidelines in relation to any matter dealt with in the Act.
The CCMA is given the power to make rules regulating, inter alia, the practices, procedures
and processes for the resolution of disputes through conciliation and arbitration; the
joinder of any person in any of those proceedings; the office hours of the CCMA; the pre-
scribed forms to be used by the parties; the basis on which a commissioner may make any
order as to costs in any arbitration; representation in CCMA proceedings (including limita-
tions to representation); the consequences of not attending proceedings; and the circum-
stances in which the CCMA may charge a fee.
Any rule so made only takes effect from the date of publication in the Government Gazette,
unless a later date is stipulated. The CCMA has to review its rules every two years.
The dispute resolution functions of the CCMA will be discussed in detail in Chapter 19.
12.6 Labour Court
12.6.1 Composition (ss 151–157)

The Labour Court was established in terms of section 151 as a court of law and equity with
jurisdiction in all the provinces of the Republic. It has the same authority, inherent powers
and standing in relation to matters under its jurisdiction as those which a division of the
High Court has in relation to matters under its jurisdiction. The seat of the Labour Court is
determined by the Minister of Justice, acting on the advice of NEDLAC, but the functions
of the Court may be performed at any place in the Republic. The Labour Court sits in
Johannesburg, Port Elizabeth, Cape Town and Durban.
The Labour Court consists of a Judge President, a Deputy Judge President and a number
of judges. To be appointed as a judge of the Labour Court a person must be either a judge
of the High Court or a legal practitioner and must have the necessary knowledge of and
experience and expertise in Labour Law. Their conditions of appointment are similar to
those of judges of the High Court.
The administrative functions of the Court are performed by the Registrar of the Labour
Court, appointed by the Minister of Justice, together with one or more deputy registrars
and as many other officers as the administration requires.
12.6.2 Jurisdiction (s 157)

The Labour Court has exclusive jurisdiction in respect of all matters that, in terms of this
Act or any other law, are to be determined by the Labour Court. The Labour Court also has
concurrent jurisdiction with the High Court in respect of any alleged or threatened viola-
tion of fundamental rights entrenched in the Bill of Rights. Such concurrent jurisdiction
also exists in respect of any dispute over the constitutionality of any executive or administra-
tive act or conduct by the State in its capacity as employer.
The Labour Court may refuse to determine any dispute, unless it is satisfied that an
attempt has been made to resolve the dispute through conciliation.
12.6.3 Powers and functions of the Labour Court (s 158)

The powers and functions of the Labour Court are:
(a) to make any appropriate order, including the granting of urgent interim relief, an
interdict, an order directing the performance of any particular act, a declaratory order,
an award of compensation or damages and an order for costs;
(b) to order compliance with any provision of the LRA or any employment law;
(c) to make any arbitration award or settlement agreement an order of the court. The
settlement agreement must be a written agreement in settlement of a dispute that a
party has the right to refer to arbitration or the Labour Court, excluding a dispute with
regard to organisational rights or in essential and maintenance services;
(d) to request the CCMA to conduct an investigation and submit a report to assist the
court;
(e) to determine any dispute between a registered trade union or employers’ organisation
and one of its members over any alleged non-compliance with its constitution;
(f) to condone the late filing of any document or the late referral of any dispute to the
court;
(g) subject to section 145 (the review of CCMA awards), to review the performance or pur-
ported performance of any function provided for in the LRA on any grounds that are
permissible in law;
(h) to review any decision taken or act performed by the State in its capacity as employer
on such grounds as are permissible in law;
(i) to decide appeals in terms of section 35 of the Occupational Health and Safety Act of
1993, where a person appeals against a decision taken by the Chief Inspector with re-
gard to safety; and
(j) generally to deal with all matters necessary and incidental to the performance of its
functions under the LRA.
The Labour Court may make an order for the payment of costs in accordance with the re-
quirements of the law and fairness. Every decision, judgment or order of the Labour Court
may be served as if it were a decision, judgment or order of the High Court.
Any party may, with leave from the Labour Court, appeal to the Labour Appeal Court
against any final judgment or order of the Labour Court. The Labour Court may, on its
own accord or at the request of any party to proceedings before it, reserve for the decision
of the Labour Appeal Court any question of law that arises during the proceedings.
If at any stage after a dispute has been referred to the Labour Court it becomes apparent
that the dispute ought to have been referred to arbitration, the Court may stay the proceed-
ings and refer the dispute to arbitration or, if it considers it expedient to do so, continue
with the proceedings in which case the Court may make an order that an arbitrator would
have been entitled to make (save an order for costs, which is still made in terms of the
provisions governing the Labour Court).
Because of the interminably long delays often experienced in the handing down of
judgments, the amendments to section 158 provide for judgments to be handed down as
soon as reasonably possible.
12.6.4 General provisions relating to the Labour Court

Section 159 of the LRA establishes a Rules Board for the Labour Court in order to make
rules to regulate the conduct of proceedings in the Court. The rules must be published in
the Government Gazette. The Rules Board must review the rules once every two years.
Proceedings in the Labour Court are conducted in open court (s 160). A party to any
proceedings may appear in person or be represented by a legal practitioner, by an office-
bearer or official of that party’s trade union or employers’ organisation, by a designated
agent or official of a bargaining council, by an official of the Department of Labour or, if

the party is a juristic person, by a director or an employee of that juristic person (s 161).
12.7 Labour Appeal Court
12.7.1 Composition (ss 167–172)

The Labour Appeal Court is established by the Act as a court of law and equity with jurisdic-
tion in all the provinces of the Republic. It is the final court of appeal in respect of all judg-
ments and orders made by the Labour Court in matters within the latter court’s
jurisdiction. The LAC has the same powers as the Supreme Court of Appeal in relation to
matters under its jurisdiction (ss 167 & 173).
The seat of the Labour Court is also the seat of the Labour Appeal Court. The functions
of the LAC may be performed at any place in the Republic (s 172). The LAC sits in Johan-
nesburg, Port Elizabeth, Cape Town and Durban.
The LAC consists of a Judge President and Deputy Judge President (who are respectively
also the Judge President and the Deputy Judge President of the Labour Court) and such
number of other judges from the High Court or the Labour Court as may be required for
the effective functioning of the Labour Appeal Court.
The LAC is constituted before any three of the appointed judges and a majority decision
is the decision of the Court (s 173(4)). A judgment of the LAC is binding on the Labour
Court (s 182).
12.7.2 Jurisdiction
The Labour Appeal Court has exclusive jurisdiction to hear and determine all appeals
against the judgments and orders of the Labour Court and to decide on questions of law
referred to it by the Labour Court (s 173).
It is possible that the Labour Appeal Court, on the hearing of an appeal, may receive fur-
ther evidence or the Court may remit the case to the Labour Court for a further hearing.
Otherwise the Court may confirm, amend or set aside the judgment or order or give any
other appropriate judgment or order (s 174).
The Judge President may direct that any matter before the LAC be heard by the Court
sitting as a court of first instance, in which case the LAC is entitled to make any order that
the Labour Court would have been able to make (s 175).
The decision of the LAC is final and there is no right of appeal against its final judg-
ments or against its decision on a question of law or against its judgment or order when
sitting as a court of first instance (s 183). Despite this provision, appeals to the Supreme
Court of Appeal were allowed for many years. This was possible because of the wording of
the Constitution. Section 168(3) of the Constitution of 1996, in its original form, declared
3
the SCA the highest court of appeal in “any matter” (other than constitutional matters)
4
and the decisions of the SCA seem to prevail as “higher” or more important decisions. It
was only in August 2013 that section 168(3) of the Constitution was amended, when it was
confirmed that the LAC is the final court of appeal in labour matters. Accordingly, appeals
to the SCA are no longer permissible or entertained.
________________________
3 See NUMSA & Others v Fry's Metals (Pty) Ltd [2005] JOL 14141 (SCA).
4 Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others [2006] 11 BLLR 1021 (SCA).
12.8 Workplace forums

Workplace forums are the innovative creations of the LRA to ensure worker participation in
the workplace. The rationale behind the idea of a workplace forum is an attempt to avoid
adversarial industrial relations by way of consultation and joint decision-making. Consult-
ation and joint decision-making become possible through the establishment of a workplace
forum.
A workplace forum may be established in a workplace with 100 or more employees. All
employees, and not only union members, enjoy representation on the workplace forum. A
workplace forum is not a negotiating forum where an employer and his employees bargain
over wages and conditions of employment, but is a platform where the employer consults
with all employees on broader issues within the workplace, such as policy issues on import
and export, restructuring of the workplace, job grading, a retrenchment policy, plant clos-
ures, mergers and education and training (ss 84 and 85). In a few limited instances the LRA
requires that the employer and the workplace forum take joint decisions, such as on a dis-
ciplinary code and procedures and an affirmative action policy.
Questions
Question 1
Employees in the building industry in Bloemfontein established a trade union and there-
after applied for membership of a bargaining council.
1.1 Discuss the prerequisites that need to be complied with when applying for regis-
tration of the trade union. (6)
1.2 Discuss the procedure for registration of the trade union. (6)
1.3 Discuss the requirements for this union to become party to the bargaining council. (8)
Question 2
Employers’ organisation A and trade unions B and C in the furniture industry in the East-
ern Cape agree to establish a bargaining council and subsequently draw up a constitution.
List the issues that must be included in the constitution and then discuss the procedure to
be followed to register the bargaining council. (30)
Question 3
Explain how a bargaining council can enforce compliance with its collective agreements. (15)
Hint: Sections 33 & 33A of the LRA.
Question 4
Name the bargaining councils established in the public sector and describe the jurisdiction
of each council. (10)
Question 5
Discuss the jurisdiction and functions of the CCMA and the Labour Court. (30)
Question 6
Identify the forum that has jurisdiction in each of the following disputes and then describe
the dispute resolution procedure that must be followed for each dispute to be resolved:
6.1 a dispute between the PSCBC and the ELRC over which of them has jurisdiction to
conclude a collective agreement relating to disciplinary and grievance procedures for
the education sector; (5)
6.2 a dispute in the Department of Sea Fisheries over an increase in wages/salaries and
improvement of other conditions of employment; (5)
6.3 a wage dispute in a service which has been designated an essential service, a state
hospital; (5)
6.4 a dispute in the Department of Justice and Constitutional Development over the dis-
missal of an employee for incapacity; (5)
6.5 a dispute in SAPS over the dismissals of employees for misconduct; (5)
6.6 a dispute over the dismissal of a number of educators at public schools for operational
reasons; (5)
6.7 a dispute concerning the interpretation or application of a collective agreement
relating to sick leave entitlements that was concluded in the PSCBC. (5)
13
FREEDOM OF ASSOCIATON
13.1 Introduction
Freedom of association is a fundamental right which is guaranteed in the Bill of Rights. The
right to freedom of association – the right to choose who one will associate with – also
applies to the work environment. Every employee and every employer has the right to
choose whether or not to associate with a group of employees (a trade union) or a group of
employers (an employers’ organisation) respectively.
In NUMSA & Others v Bader Bop (Pty) Ltd & Another [2003] 2 BLLR 103 (CC) the
Constitutional Court referred to the principles laid down by the ILO as “an important
resource in developing the labour rights contained in our Constitution” and observed as
follows:
An important element of freedom of association is the right of employees to choose which unions they
wish to join. A majoritarian union system is not incompatible with freedom of association as long as
minority unions are allowed to exist. The ILO has held that the right to strike is essential to collective
bargaining, but recognises that certain limitations on that right do not necessarily constitute infringe-
ments of freedom of association. Freedom of association is ordinarily interpreted to afford unions the
right to recruit members and to represent them in individual workplace grievances and to strike to
enforce bargaining demands. The constitutional right of freedom of association is impaired if workers
are not permitted to have their own union represent them in workplace disciplinary and grievance
matters, but must be represented by a rival union which they have chosen not to join. To prohibit a
right to strike over a demand that is itself related to a fundamental right constitutes a limitation on the
constitutional right to strike. The jurisprudence of the enforcement committees of the ILO suggests
that an interpretation of the LRA which permits minority unions to strike over the recognition of shop
stewards would be more in accordance with the principle of freedom of association and other constitu-
tional rights than the contrary interpretation.
13.2 Employee rights

Every employee has the right to take part in the formation of a trade union (or a federation
of trade unions) and to become a member of a trade union, subject to its constitution
(s 4(1)). As a member of a trade union, an employee has the right to participate in its
lawful activities, the election or the appointment of its office-bearers, officials and trade
union representatives and to stand for elections or be eligible for appointment as a union
representative (s 4(2)). The same rights accrue to a member of a trade union who is a
member of a federation of trade unions (s 4(3)).
255
• has the right to participate in the formation

of a trade union
An employee
• has the right to become a member of a trade
union
• has the right to participate in lawful activities

of the trade union
Employee/
member of trade • has the right to participate in elections of the
union/member of trade union
federation • has the right to be elected or appointed as
office-bearer, official or trade union represen-
tative of the union or federation
No person may discriminate against an employee for exercising any right conferred by the
LRA (s 5(1)). In Theron & others v FAWU & others [1998] 5 BLLR 528 (LC) the Labour
Court confirmed that “the protection against infringement of that right operates against
anyone who might infringe it”, not only against employers. Hence, employees enjoy
protection of their freedom of association also against their own trade union.
The protection against discrimination includes, but is not limited to, protection against
prejudice for exercising one’s rights. This protection is extended to work-seekers.
Therefore, no person may require of an employee or of a person seeking employment not
to be a member or to become a member of a trade union or a workplace forum. An
employee or work-seeker may not be prejudiced because of his membership of or
participation in the formation of a trade union or workplace forum or because of his
participation in the lawful activities of the trade union or workplace forum (s 5(2)). No
person may advantage or promise a benefit or advantage to an employee or work-seeker in
exchange for that employee or work-seeker’s not exercising any of these rights (s 5(3)).
It occurs, unfortunately quite frequently, that union officials or office bearers are
victimised because of their union membership and/or their activities. In Ceramic Industries
Ltd t/a Betta Sanitaryware v NCBAWU (2) [1997] 18 ILJ 671 (LAC) the Labour Appeal Court
confirmed that such victimisation constitutes an infringement of the protection of freedom
of association and is a matter that has to be dealt with by the Labour Court (see below).
Also refer to Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC).
Any provision in a contract that directly or indirectly contradicts or limits any of the
employee’s rights or the protection thereof is invalid (unless permitted by the LRA)
(s (5(4)).
13.3 Employer rights

Employers are granted an equal right to participate in the formation of an employers’
organisation (or a federation of employers’ organisations) and to join an employers’
organisation (s 6(1)). An employer also has the right to participate in the lawful activities of
the employers’ organisation and to take part in the election of office-bearers or officials. If
the employer is a natural person he may stand for election or be eligible for appointment as
an office-bearer or official and if the employer is a juristic person a representative may be
appointed to stand for election or be eligible for appointment as an office-bearer or official
(s 6(2)).
Employers are granted the same protection against discrimination as employees.
Accordingly, no person may discriminate against or prejudice an employer for exercising
rights conferred by the LRA or require an employer not to be a member of an employers’
organisation or give up such membership (s 7).
Freedom of association 257
• has the right to participate in the formation

of an employers’ organisation
Employer
• has the right to be a member of an employers’
organisation
Employer/member • has the right to participate in lawful activities

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

Every trade union and every employers’ organisation has the right to determine its own
constitution and rules, to hold elections for its office-bearers, officials and representatives,
to plan and organise its administration and lawful activities, to participate in forming feder-
ations, to join any federation and to affiliate with any international organisation (s 8).
13.5 Freedom of association disputes

Any dispute about the interpretation or application of the rights in Chapter 2 must be refer-
red to a bargaining council or, if no council has jurisdiction, to the CCMA for conciliation.
The party who refers the dispute must satisfy the council or the CCMA that a copy of the
referral has been served on all the other parties to the dispute. If conciliation does not
resolve the dispute, any party can refer it to the Labour Court for adjudication (s 9).
The party who alleges an infringement of a right or protection bears the onus to prove it.
The other party can then prove the contrary (s 10).
Order
↑
Labour Court
↑
No resolution
↑
Conciliation
↑
Council/CCMA
↑
Dispute
Questions
Question 1
Stefano is a newly appointed employee. In terms of his contract of employment he is not
allowed to join any trade union. He is not familiar with the rights conferred on employees
by the LRA and accepts the condition. When he is given a written warning for late coming
he seeks advice from the union that is active in the workplace. The union encourages him
to become a member. When the manager gets wind of what is going on he threatens to dis-
miss Stefano.
Discuss Stefano’s legal position. (8)
Question 2
A small family business is hit by a protected strike. The business deals in perishable foods
and it is necessary that the stock is packed and sold immediately. The manager promises a
bonus of R500 to those employees who are willing to work and not participate in the strike.
Four employees return to work and they each receive the promised R500. When the strike
finally comes to an end the other employees demand R500 each and when the employer
refuses to pay them, they ask their union to intervene.
2.1 Discuss the validity or otherwise of the manager’s promise of a bonus. (5)
2.2 Explain the dispute resolution path that the striking employees (with the assistance of
their union) can take to have the dispute resolved. (4)
Question 3
Lucky is a supervisor in the warehouse of the Wine and Beer Company with 18 years’ ser-
vice. For the past six years he has been the shop steward of the Food and Wine Union. With
the downturn in the economy the company is suffering financially and decides to retrench
some employees. Because of Lucky’s long service and his good service record the company
does not want to lose him through retrenchment and offers him a job as a manager on con-
dition that he relinquish his union affiliation. Lucky refuses and is dismissed.
Discuss Lucky’s legal position. (7)
Hint: See ss 5, 185 & 187 of the LRA; FAWU v The Cold Chain [2007] 7 BLLR 638 (LC).
Question 4
Jerome was employed by Alert Security (Pty) Ltd as a security guard. He was deployed to
render security services at the premises of one of Alert’s clients, Jeshra Jewellers. One of the
stipulations in Jerome’s contract of employment was that his contract would terminate
automatically upon the termination of the contract between Alert and its client or when the
client no longer required the employee’s services “for whatever reason”. When Jeshra Jewel-
lers terminated its contract with Alert, Jerome was informed that his employment contract
came to an end, that he no longer had work, because of the stipulation in the contract.
Jerome believed he had been treated unfairly and referred an unfair dismissal dispute to
the CCMA. Alert disputed Jerome’s claim of dismissal as his contract provided for auto-
matic termination.
Does the termination of Jerome’s contract constitute a dismissal or is Alert correct in its
contention that the contract terminated because of the provisions in the contract? If you
decide that Jerome was dismissed, determine the fairness or otherwise of the dismissal. (15)
Hint: See SA Post Office Ltd v Mampeule [2010] 10 BLLR 1052 (LAC); Mahlamu v CCMA &
Others [2011] 4 BLLR 381 (LC); Pecton Outsourcing Solutions CC v Pillemer [2016] 2 BLLR 186
(LC).
Question 5
The majority of the bus drivers at Superior Bus Services (Pty) Ltd belong to the Transport
Workers Union. Other employees in the company belong to two other unions. Because of
the extensive diversity in the workplace the company introduces a policy that prohibits the
wearing of clothing that depicts association with any trade union or a political party during
working hours. The Transport Workers Union objects to this policy, claiming that it
infringes the rights of the employees.
Is there any merit in the union’s claim? (6)
Hint: NUMSA & Others v Transnet & Others [2019] 2 BLLR 172 (LC).
14
COLLECTIVE BARGAINING
14.1 Introduction
Collective bargaining under the Labour Relations Act of 1956 was intensely adversarial and
the old Industrial Court was often called upon to adjudicate collective bargaining issues and
bargaining conduct under its unfair labour practice jurisdiction. Industrial action escalated
to unacceptable proportions.
The legislature made a concerted effort, when enacting the Labour Relations Act of 1995
(LRA), to counter the adversarial nature of collective bargaining by placing the emphasis
on co-operation and constructive engagement between labour and management.
To this end, all employers and employees are guaranteed the freedom of association as a
starting point to form trade unions and employers’ organisations in order to engage and
participate in collective bargaining. Representative trade unions are granted organisational
rights by law; they do not have to litigate to obtain such rights or recognition anymore, as
they had to do under the 1956 LRA. Collective bargaining is encouraged rather than
compelled, unlike under the old LRA when the refusal to bargain was considered an unfair
labour practice. The requirements for a “legal” or “protected” strike have been simplified in
an attempt to curb the number of illegal strikes of the past. And, employees who participate
in a strike that meets the requirements are protected against dismissal.
Collective bargaining is possible at sector or plant level. At sector level bargaining coun-
cils have taken the place of the old industrial councils and statutory councils can be formed
in sectors or areas where no bargaining council exists.
A new structure, the workplace forum, in particular is aimed at democratising enterprise-
level labour-management relations. While the workplace forum is not a typical negotiating
forum, its purpose is to engage management and labour in consultation and joint decision-
making, thereby allowing for less adversarial confrontation and curbing managerial prerog-
ative.
14.2 Recognition and the duty to bargain

The LRA of 1995 makes no provision for a legally enforceable duty to bargain, but affords
certain rights to unions, such as organisational rights, the right to establish a statutory
council, the right to enjoy the benefits of a workplace forum and agency shop and closed
shop arrangements.
Although employers are obliged to grant these rights to representative unions, they are
not compelled to engage in bargaining with them as there is no duty to negotiate.
But, refusal to bargain can result in power play in order to convince the other party to
negotiate. If an employer refuses to negotiate with a union, the union is able to strike with-
out fear of dismissal of its members, provided the strike takes place in accordance with the
requirements of Chapter 4 of the LRA.
259
A dispute concerning a refusal to bargaining, as defined in section 64(2), must be refer-

red to the CCMA or a bargaining council for conciliation before giving notice of a strike. In
such a case it is incumbent on the CCMA or council to issue an advisory award. The role of
the CCMA or council in these circumstances is to promote collective bargaining by facili-
tating an agreement between the disputing parties. The CCMA or council can, however, not
dictate to the parties what to do, so voluntarism is largely kept intact.
Although an advisory award is not binding, it seems likely that it will not be ignored if it
imposes a duty to negotiate. The potential importance of an advisory award becomes clear
when one considers that a refusal to bargain includes (s 64(2)):
• a refusal to recognise a union as a collective bargaining agent;
• a refusal to establish a bargaining council;
• the withdrawal of recognition of a collective bargaining agent;
• the resignation of a party from a bargaining council; and
• disputes concerning appropriate bargaining units, levels and topics.
Recognition of a union is the foundation for collective bargaining. Under the LRA of 1956
the Industrial Court, through its unfair labour practice jurisdiction, obliged employers to
deal with and accord rights to unions. The decisions of the Industrial Court were contradic-
tory: some required an employer to bargain with a majority union only, some compelled
the employer to negotiate with any and all unions in the organisation. The majority of
decisions favoured a duty to bargain once a union was sufficiently representative.
The Labour Relations Act of 1995 removes this uncertainty. An employer is now obliged
to accord rights of recognition only to registered unions that are “representative”. “Repre-
sentativeness” has the following connotations:
• sufficient representation. Only a registered union which is sufficiently representative of em-
ployees at a particular workplace may demand organisational rights, such as access to the
workplace, stop-order facilities and leave during working hours for its office-bearers.
“Sufficient representation” is not defined, but the spirit of the Act indicates that a union
with a significant membership base, albeit short of a majority, will be considered a suffi-
ciently representative union. The Industrial Court, under the old Act, sought a member-
ship of approximately 30% to constitute sufficient representation. In terms of the 1995
Act the concept “sufficient representation” has been considered mostly in the context of
organisational rights and from these judgments it appears that a membership in the
region of 30% will in the majority of cases be considered “sufficient”. Two or more unions
may act jointly in order to establish sufficient representation;
• majority membership. “Majority” indicates a clear majority of union members in the work-
place, i.e. 50% plus one employee have joined the union. Only registered unions with a
majority support in the workplace will be able to demand statutory rights relating to
agency shop, closed shop and workplace forum arrangements. Furthermore, rights to dis-
closure of information, to appoint workplace representatives (shop stewards) and to paid
leave for representatives are enjoyed only by majority unions. Two or more unions may
act jointly to establish majority support in order to be accorded these rights;
• 30% membership. A registered union wishing to establish a statutory council must have a
membership of at least 30% in the relevant industry. Two or more unions may act jointly
for this purpose. It is only in the context of statutory councils that the LRA specifically
refers to 30%.
14.3 Organisational rights

Organisational rights are set out in Part A of Chapter 3 of the LRA. They are union rights,
not employee rights, and are bestowed on registered unions only. The organisational rights
Collective bargaining 261
are found in sections 12 to 16 of the Act and are the right of access to the workplace, the
right to the deductions of union subscriptions from employees’ wages, the right to paid leave
for office bearers, the right to elect union representatives (shop stewards) in the workplace,
the right to paid time off for union representatives and the right to disclosure of infor-
mation.
Registered majority unions are accorded all of the organisational rights; sufficiently repre-
sentative unions enjoy three of the rights: access, deduction of union subscriptions and paid
leave for office bearers. In terms of section 21(8A), a sufficiently representative union can
obtain more than the three “basic” rights. If the sufficiently representative union is the most
representative union in the workplace, the CCMA can, in an arbitration, grant the rights of
electing shop stewards and paid time off for shop stewards provided the union already
enjoys the rights of access, deductions and leave for office bearers and that no other union
in the workplace has been granted these rights. Or, a sufficiently representative union that
already enjoys all the organisational rights except the right to disclosure of information can
be granted the right to disclosure if no other union in the workplace has been afforded that
right. These “additional” rights lapse when the union is no longer the most representative
union in the workplace (s 21(8B)).
An employer and a registered majority union or parties to a bargaining council can con-
clude a collective agreement in order to establish the threshold of representativeness
required to obtain the rights of access, deductions and leave for office bearers (s 18). For
example, ABC union and an employer have concluded a collective agreement in terms of
which all unions in that workplace must meet the threshold of 35% membership before it
will enjoy the three “basic” rights. If XYZ union also recruits employees as members in that
workplace it will not enjoy these rights until it reaches a membership of 35%. However, in
terms of section 21(8C) it is possible for a union that does not meet the threshold to be
granted the “basic” rights. In an arbitration the CCMA can grant these rights to the union if
the union represents a significant interest or has a substantial number of members in the
workplace and if all the parties to the threshold collective agreement participated in the
arbitration proceedings. Thus, in the example XYZ union may be granted these rights even
if it has less than a 35% membership if it can prove that it presents a significant interest in
the workplace – and if both the employer and ABC union were involved in the arbitration.
Registered trade unions that are parties to a bargaining council automatically have the
rights of access and deduction of union subscriptions in respect of all workplaces within the
registered scope of the council, regardless of their representativeness in any particular
workplace (s 19).
Nothing prohibits an employer and a union that is not sufficiently representative or that
does not meet the threshold, in other words a union that does not get organisational rights
in terms of the LRA, to bargain and conclude a collective agreement in terms of which the
union will be granted some of the organisational rights (s 20). See POPCRU v SACOSWU
[2018] ZACC 24 (CC); AMCU v CCMA & Others [2018] 7 BLLR 656 (LC); NUMSA v Bader
Bop (Pty) Ltd [2003] 2 BLLR 103 (CC).
The key to organisational rights turns on the status of a trade union in the workplace. It is
not a bargaining unit only (for example hourly paid workers), but the total number of
employees in the workplace that must be considered to determine the union’s representa-
tiveness.
A “workplace” is defined in section 213 as follows:
(a) in relation to the public service –
(i) for the purposes of collective bargaining and dispute resolution, the registered scope
of the Public Service Co-ordinating Bargaining Council or a bargaining council in a
sector in the public service, as the case may be; or
(ii) for any other purpose, a national department, provincial administration, provincial
department or organisational component contemplated in section 7(2) of the Public
Service Act, 1994 (promulgated by Proclamation No. 103 of 1994), or any other part of
the public service that the Minister for Public Service and Administration, after consul-
tation with the Public Service Co-ordinating Bargaining Council, demarcates as a work-
place;
(b) . . . [repealed]
(c) in all other instances means the place or places where the employees of an employer work.
If an employer carries on or conducts two or more operations that are independent of one
another by reason of their size, function or organisation, the place or places where the em-
ployees work in connection with each independent operation, constitutes the workplace for
that operation.
A “workplace” in the public sector seems clear and presents little difficulty. However, in the
private sector it may be more problematic to determine the exact “workplace”. The follow-
ing considerations may assist in determining the workplace:
Firstly, a workplace means “the place or places where the employees of an employer
work”. The criterion is the employment relationship between employer and employees.
Consequently, lifting the corporate veil is limited in the case of wholly owned subsidiary
companies – each would legally be an employer of its own employees, although certain
decisions may be taken by the holding company. There seems to be limited scope then to
find that a holding company and its subsidiary constitute a single workplace even if they
function as an entity. If, however, the employer’s actions can be considered improper con-
duct of a serious nature, such as dividing an enterprise into different companies in order to
frustrate the intention of the LRA, piercing the corporate veil would be justified.
Secondly, the definition refers to a situation where an employer conducts two or more
operations. The “workplace” comprises all the different places of work, unless one or more
of them are independent, as per the definition. It is only where an operation is independ-
ent that it can be considered a separate workplace.
Schedule 2 of the Act, dealing with workplace forums, suggests that parties are free to
decide whether different branches of an organisation should be regarded as one workplace
or not, for example, a bank with many branches may be one workplace, but instead of
establishing just one workplace forum, the constitution of the forum may allow for a co-
ordinating workplace forum at head office and subsidiary forums at some or all of the
branches. The question is whether the same approach can or should be adopted when
determining the “workplace” in order to decide a union’s representativeness and its rights.
In the early days of the 1995 LRA the concepts “workplace” and “union representative-
ness” received much attention. In NUMSA v Feltex Foam [1997] 6 BLLR 798 (CCMA) Feltex
was one of six operations described as falling within the “Jacobs bargaining unit”, a division
of Island View Industrials and with Romatex Industrials as the holding company. Feltex was
a separate legal entity and employer and was itself made up of two operations, Feltex Foam
Mouldings and Feltex Foam Converters. SACTWU was recognised as the sole bargaining
agent of all workers in the Jacobs bargaining unit, but NUMSA demanded organisational
rights in respect of the latter workplace. Feltex Foam Mouldings fell under the jurisdiction
of the Motor Industries Bargaining Council and was subject to its main agreement. The
CCMA decided that Feltex Foam Mouldings was “physically distinct” and as such was con-
sidered a separate workplace. NUMSA was consequently accorded organisational rights.
SACTWU’s right to exclusive recognition, founded in contract, was overridden by NUMSA’s
statutory rights.
In SACCAWU v The Hub [1998] 12 BALR 1590 (CCMA), however, the company’s head
office and 12 retail outlets were collectively defined as a “workplace”. Similarly, in OCGAWU
v Total SA (Pty) Ltd [1999] 6 BALR 678 (CCMA) it was found that individual distribution
depots did not constitute separate workplaces since they did not conduct independent
operations. The same approach was followed in OCGAWU v Woolworths (Pty) Ltd [1999] 7
BALR 813 (CCMA) where a retail company with 104 outlets was considered one workplace.
In Structural Applications (Pty) Ltd v TAWUSA [2003] 10 BALR 1203 (CCMA) the company
did steel work and industrial painting on a contract basis, working on different sites. The
CCMA held that, because of the nature of the company’s contract work, each site on which
it operated could not be regarded as a separate workplace. Also refer to CEPPWAWU v EH

Waltons Packaging [2000] 12 BALR 1375 (CCMA); CAMMBAWU v Goldings Orthopaedic Centre
[2006] 2 BALR 170 (CCMA); WESUSA v Isidingo Security Services [2007] 7 BALR 678
(CCMA).
Once the “workplace” has been established, the union’s representativeness in that work-
place must be determined to find out whether the union is entitled to any or all of the
organisational rights.
In SACCAWU v Metlife (Pty) Ltd (1997) 18 ILJ (CCMA) some 800 employees joined the
union, which represented 13,5% of the total workforce. The company, with many places of
operation throughout the country, had approximately 6 000 indoor and field staff in its
employ. Both the employer and the union adopted the view that the workplace comprised
all the operations of the company. The CCMA decided that the union was not sufficiently
representative to win organisational rights.
In SACTWU v WM Eachus and Co (CCMA 1997) the union had below 20% membership
and was, therefore, not considered sufficiently representative. No organisational rights were
granted to the union.
In SACTWU v Sheraton Textiles (Pty) Ltd [1997] 5 BLLR 662 (CCMA) the union represent-
ed a fraction under 30% of the workforce. The employer argued that 40% to 45% should
be the target for representativeness. The CCMA commissioner held that “the arbitrator is
required to have regard to the interests represented by the union and not exclusively the
numerical representativeness of employees”. The union represented some 150 workers
which, according to the commissioner, was by no means an insignificant number. Having
had regard to the history of the union’s struggle to obtain some rights and the interests
served by it, the commissioner decided that the union was sufficiently representative and it
was granted limited organisational rights.
In UPUSA v Komming Knitting [1997] 4 BLLR 508 (CCMA) a union with 22% member-
ship was granted the rights of access and stop-order facilities.
In CWIU v Millner’s Dental Suppliers (Pty) Ltd (1997) 18 ILJ (CCMA) the employer submit-
ted that its total workforce numbered 70 employees, which included four directors, three
wives of the directors and eight managers. The union had recruited 32 members and,
according to the company, thus fell short of a majority. The directors’ wives handled confi-
dential correspondence, but did not report for work at the premises and did not have fixed
working hours. Commissioner Bulbring decided that the rights sought by the union were
“workers’ rights” and if these were secured by directors it would create a conflict of interest
vis-à-vis the directors’ fiduciary duties to the company. Furthermore, it was hard to imagine
a director representing a fellow employee at a disciplinary hearing. Section 21(8)(a)(i)
requires a commissioner to consider the organisational history of the workplace and pre-
vent a proliferation of trade unions in the workplace. As the history indicated that directors
and managers had not been members of any union, an exclusion of them would not bring
about a proliferation of unions, as per the commissioner. It was further held that the
directors’ wives were independent contractors and hence should not feature in the calcula-
tions. The result was that, according to the commissioner, there were a total of 63 employ-
ees at the company, 32 of who belonged to the union. A very narrow majority!
In Structural Applications (Pty) Ltd v TAWUSA (above) the union had about 23% member-
ship of the total workforce. This was not considered sufficient and the union was denied
organisational rights.
These early decisions seem to have brought sufficient certainty so that very few cases were
1
launched in the CCMA for determination in the years that followed. When the 2014
________________________
1 Inter alia Solidarity v Mercedes Benz of SA (Pty) Ltd [2011] 11 BALR 1216 (CCMA); AMCU v Hitricon HEMC
(Pty) Ltd [2014] 12 BALR 1223 (CCMA); SA Postal Workers Union obo Dreyer and Others v South African Post
Office Ltd & Another [2013] 2 BALR 216 (CCMA).
amendments introduced rights to unions with a “significant interest” or a “substantial

number” of members, speculation was rife that a surge of new dispute would be referred to
the CCMA, especially in light of the fact that, in terms of section 21(7)(b)(v), labour broker
employees, fixed-term and part-time employees and other employees in non-standard
employment now have to be included in the calculations of the total workforce and a
union’s representativeness. This did not happen and relatively few cases were heard by the
CCMA.
Sufficiently representative unions:

• access to the workplace;
• deduction of union subscriptions from members’ wages;
• leave during working hours for office-bearers.
Majority unions:
In addition to the above-mentioned rights, a majority union
also has the right to:
• disclosure of information;
ORGANISATIONAL
RIGHTS • appointment of union representatives in the workplace;
• paid leave for union representatives.
Sufficiently representative unions may be granted the majority
rights in a CCMA arbitration if no other union in the work-
place enjoys those rights.
A union that does not meet the threshold in terms of a collect-
ive agreement may be granted the first three rights in a CCMA
arbitration if the union represents a significant interest or a
substantial number of employees in the workplace.
Registered unions that are parties to a council automatically
have the right of access and the right to deductions of union
subscriptions from members’ wages, regardless of their rep-
resentativeness in the workplace.
14.3.1 Right of access to workplace (s 12)

Any office-bearer or official of a sufficiently representative or majority union is entitled to
enter the employer’s premises in order to recruit members, communicate with members or
otherwise serve their interests. The union is also entitled to hold meetings with employees
outside their working hours at the employer’s premises. The members are entitled to vote
at the employer’s premises in any election or ballot contemplated by the union’s constitu-
tion. Two or more unions may act jointly in order to establish sufficient or majority repre-
sentation to obtain the right of access.
These rights are subject to any conditions as to time and place that are reasonable and
necessary to safeguard life or property or to prevent the undue disruption of work.
The right of access is restricted in the domestic sector in that an office-bearer or official
of the union may not enter the home of the employer without the employer’s consent
(s 17).
14.3.2 Deduction of trade union subscriptions (s 13)

Any employee who is a member of a sufficiently representative or majority trade union (or
two or more unions acting jointly) may authorise the employer in writing to deduct from his
wages subscriptions or levies payable to the union. The employer must make the deduction
as soon as possible after authorisation was given and thereafter monthly. The deductions
must be remitted to the union by no later than the 15th day of the month following the
date of each deduction. The remittance must be accompanied by a list of names of mem-
bers from whose wages deductions were made, details of the amounts deducted and a copy
of every notice revoking the authorisation to deduct.
An employee may revoke his authorisation by giving the employer and the union one
month’s written notice or, if the employee works in the public service, three months’ writ-
ten notice. The employer must make the deductions until this notice period has expired.
14.3.3 Leave for trade union activities (s 15)

An employee who is an office-bearer of a sufficiently representative or majority union (or
two or more unions acting jointly) or of a federation of trade unions to which the trade
union is affiliated, is entitled to take reasonable leave during working hours for the purpose
of performing the functions of his office. The union and the employer must negotiate and
agree on the number of days’ paid leave the office-bearer/employee is entitled to and the
conditions attached to that leave.
Where the number of days’ leave and the conditions attached to it were the subject mat-
ter of a CCMA arbitration the arbitration award remains in force for 12 months from the
date of the award.
14.3.4 Trade union representatives (s 14)

The lowest level of bargaining is at shop floor level where trade union representatives or
shop stewards look after the interest of the union members. Majority unions have, in terms
of the LRA, the right to elect shop stewards. Other, smaller unions will have to negotiate
with the employer to obtain such a right. Two or more registered unions may act jointly in
order to constitute a majority.
In any workplace in which at least ten union members are employed, union represen-
tatives may be elected by the members from among themselves. The ratios of union repre-
sentatives to the number of employees who are union members are the following:
• if ten members of the union are employed in the workplace, one trade union represen-
tative;
• if more than ten members of the union are employed in the workplace, two trade union
representatives;
• if more than 50 members are employed, two union representatives for the first 50 mem-
bers, plus one additional representative for every additional 50 members up to a max-
imum of seven representatives;
• if more than 300 members are employed, seven union representatives for the first 300
members, plus one additional representative for every 100 additional members up to a
maximum of ten representatives;
• if more than 600 members are employed in the workplace, ten representatives for the
first 600 members, plus one additional representative for every 200 additional members
up to a maximum of twelve representatives; and
• if more than 1 000 members are employed in the workplace, twelve representatives for
the first 1 000 members, plus one additional representative for every 500 additional
members up to a maximum of twenty representatives.
A union’s constitution governs the nomination, election, terms of office and removal from
office of the union representatives.
A shop steward has the right to perform the following functions:
(a) at the request of an employee in the workplace, to assist and represent that employee
in grievance and disciplinary proceedings;
(b) to monitor the employer’s compliance with collective agreements and employment
laws;
(c) to report any alleged breaches of these agreements or laws to the employer, the union
and any responsible authority or agency; and
(d) to perform any other function agreed to between the union and the employer.
A shop steward is, subject to reasonable conditions, entitled to reasonable paid leave during
working hours to perform his functions and to receive training.
An employer and a majority union or the parties to a bargaining council may conclude a
collective agreement to establish a threshold of representativeness in respect of the rights to
access, deduction of union subscriptions and leave. Such an agreement is not binding,
unless the thresholds of representativeness in the collective agreement are applied equally
to any registered trade union seeking any of the organisational rights referred to (s 18).
14.3.5 Disclosure of information (s 16)
A registered majority union has, or two or more registered unions acting jointly have, the
right to disclosure of relevant information. A union does not enjoy this right in the domes-
tic sector.
An employer must disclose to union representatives all relevant information that will
allow them to perform their functions effectively. Such disclosure is also required when an
employer is consulting or bargaining with the union so that effective participation by the
union is possible. If the employer believes that information is confidential and cannot be
revealed, the union or union representative needs to be advised thereof.
An employer is not required to disclose information that:
• is legally privileged;
• the employer cannot disclose without contravening a prohibition imposed by any law or
order of court;
• is confidential and, if disclosed, may cause substantial harm to an employee or the employ-
er; or
• is private personal information relating to an employee, unless that employee consents
to the disclosure of the information.
A dispute about what information is required to be disclosed may be referred in writing to
the CCMA (not a bargaining council) and a copy of the referral must be served on the
employer. The CCMA must attempt to resolve the dispute through conciliation and if
conciliation is unsuccessful, through arbitration.
The CCMA Commissioner in an arbitration must decide whether the required infor-
mation is relevant. If information is not relevant, it need not be disclosed and disclosure
will not be ordered. If confidential or personal information of an employee is relevant, the
possible harm that disclosure can cause the employer or employee must be weighed against
the limitations that non-disclosure may place on the union representatives to consult or
negotiate effectively. The commissioner may order disclosure on terms designed to limit
the harm that is likely to be caused to the employee or employer.
14.3.6 Exercise of organisational rights (s 21)

A sufficiently representative or majority union that wishes to exercise one or more of the
organisational rights must notify the employer of its intention to do so in writing. A certi-
fied copy of the trade union’s registration certificate must accompany the notice.
The notice to the employer must include the following information:
• the workplace in respect of which the trade union seeks to exercise the rights;
• the representativeness of the trade union in that workplace;
• the facts the union relies upon to demonstrate that it is sufficiently representative or the
majority union;
• the rights that the union seeks to exercise; and
• the manner in which the union seeks to exercise those rights.
Within 30 days of receiving the notice, the employer and the union must meet in order to
negotiate the manner in which the union will exercise the rights it is entitled to. This means
that, while the union for example obtains the right of access in terms of section 12, the
details of that access need to be negotiated, such as times and places the union officials can
have meetings with its members. Or, if the union has the right to elect shop stewards, the
details of their leave for union activities need to be negotiated. If the union and employer
reach agreement, they will conclude a collective agreement regulating organisational rights
in the workplace.
If the employer and the union do not reach agreement, either the union or the employ-
er may refer a dispute to the CCMA for conciliation and arbitration.
A union that exercises organisational rights in respect of labour broker (TES) employees
may do so either in the labour broker’s workplace or in the workplace of the labour bro-
ker’s client.
The procedure for exercising organisational rights may be illustrated as follows:2
3
Award
14 days
Arbitration
No resolution
Conciliation
CCMA
Collective agreement No agreement
4
Meeting
30 days
Notification of intention
5
to exercise organisational rights
14.3.7 Resolution of disputes about organisational rights (s 22)

The CCMA has exclusive jurisdiction over disputes about organisational rights and deter-
mines such disputes through conciliation and arbitration. A bargaining council lacks juris-
diction to entertain organisational rights disputes – NAGEWU v Mr Clean [1998] 7 BALR
844 (CCMA); SACTWU v Bibart Projects [2000] 1 BALR 65 (CCMA); sections 16, 21, 22 and
127 and the footnote to section 51 of the LRA.
________________________
2 Diagram 2 is contained in Sch 4 of the Act. Sch 4, however, does not have the force of law and the dia-
gram is provided as a guideline. This diagram has been slightly adapted.
3 The LRA contemplates determinations about the definition of a workplace, the representativeness of a
union and the manner in which organisational rights can be exercised.
4 The purpose of this meeting is the conclusion of a collective agreement on the exercise of the organisa-
tional rights. If no agreement is concluded the union may elect to strike or it can refer the dispute to
the CCMA. If the union elects to strike, it cannot refer a dispute over organisational rights to the CCMA
for a period of 12 months.
5 In terms of s 21(2) a union may notify an employer that it intends to exercise organisational rights. For
example, if a registered union is sufficiently representative it may notify the employer that it seeks to ex-
ercise the right of access.
Disputes may range from employers and unions not reaching agreement on organisa-
tional rights to the representativeness of the union or to the interpretation or application
of Part A of Chapter 3 of the Act (organisational rights). Either the employer or the union
may refer a dispute to the CCMA. In practice the majority of the disputes are referred by
unions because an employer has refused to grant it organisational rights on account of the
union’s representativeness. It is then for the CCMA Commissioner, in arbitration, to decide
whether the union is entitled to any of the rights and, if so, which rights.
If the union’s representativeness is in question the Commissioner may make enquiries or
conduct a ballot to determine union membership.
In deciding whether to grant organisational rights to a union, the Commissioner must
guard against proliferation of union representation in the workplace and rather encourage
a system of a single union, where possible. This will minimise the financial and administra-
tive burden on an employer who has to deal with and grant organisational rights to more
than one union. In this regard the Commissioner must consider the nature of the work-
place, the organisational right(s) that the union seeks to exercise, the nature of the sector
in which the workplace is situated, the organisational history at the workplace or any other
workplace of the employer and the composition of the workforce, taking into account
labour broker employees, employees engaged on fixed-term contracts, part-time employees
and employees in other categories of non-standard employment.
An employer who claims that a union is no longer representative and is therefore no
longer entitled to organisational rights may approach the CCMA with an application that
some or all of the organisational rights be withdrawn. If the union is no longer representa-
tive, the rights may be withdrawn.
In an arbitration concerning organisational rights, the arbitration award may order the
employer and/or any other person who is in control of the workplace to grant some or all
of the organisational rights to the union. Where labour broker employees are involved, the
award can also be made binding on the client of the labour broker.
14.4 Collective bargaining structures
14.4.1 Bargaining councils

The primary function of a bargaining council is the conclusion of collective agreements. A
bargaining council thus has a peace-keeping function. Parties to the council may, of course,
negotiate all matters of mutual interest. They are accordingly not confined to negotiate
wage increases and other conditions of employment, but can negotiate a number of other
issues, such as dispute resolution procedures and the threshold of representativeness in
respect of certain organisational rights. Should parties conclude a collective agreement, the
agreement takes precedence over the provisions of the Act.
A collective agreement concluded in a bargaining council binds:
• the parties to the bargaining council who are also parties to the collective agreement;
• each party to and the members of every other party to the collective agreement in so far
as the provisions thereof apply to the relationship between such a party and the mem-
bers of the other party;
• the members of the union who is party to the agreement and the employers who are
members of an employers’ organisation who is such a party, if the agreement regulates
conditions of employment or the conduct of employers in relation to their employees or
vice versa (s 31).
In terms of section 32 a bargaining council collective agreement may be extended to non-
parties who fall within the registered scope of the council. A non-party is an employer or
employee who is not party to the bargaining council through their employers’ organisation
or trade union. The consequence of an extension of an agreement is that whatever the
parties to the bargaining council decided also apply to employers who are not party to the
council (via employers’ organisations). For example, Smith’s Builders is a small construc-
tion company and does not belong to any employers’ organisation. The parties to the Civil
Engineering Bargaining Council (employers’ organisations SAFCEC and CEO and unions
BCAWU and NUM) conclude a collective agreement on minimum wages for the civil
engineering sector. If this agreement is extended to non-parties, Smith’s Builders will have
to comply with the collective agreement and pay the minimum wages as contained in that
agreement despite the fact that Smith Builders was never part of the negotiations and
conclusion of the agreement.
A bargaining council collective agreement is extended by the Minister, by notice in the
Government Gazette, and will be binding on non-parties for a specified period. The bargain-
ing council may apply for an extension, provided that the majority of the members of the
unions that are parties to the council vote in favour of an extension and provided further
that the majority of employers belonging to the employers’ organisations that are parties to
the council vote in favour of an extension.
A collective agreement may not be extended, unless the Minister is satisfied that the ma-
jority of the members of the parties to the bargaining council support an extension, that
the majority of employees in the sector belong to the unions that are party to the council,
that the employers who are members of the employers’ organisations employ the majority
of employees in the sector, that the bargaining council has effective application and appeal
procedures for exemptions in place and that the collective agreement does not discrimi-
nate against non-parties.
14.4.2 Statutory councils

The main functions of a statutory council include the resolution of disputes within its area
of jurisdiction, the establishment of training and education schemes and the establishment
and administration of pension, provident, medical aid, sick pay, holiday and unemployment
schemes. Collective agreements are concluded to give effect to these matters and may also
be extended to non-parties.
Bargaining over wages and conditions of employment is not expressed as a function of a
statutory council (s 43(1)). However, a statutory council can in its constitution adapt any of
the functions of a bargaining council (s 43(2)). This conceivably includes the conclusion of
collective agreements to regulate wages and conditions of employment.
14.4.3 Workplace forums

Workplace forums are consultative bodies rather than negotiating ones. Once a workplace
forum has been established, an employer is obliged to consult with the forum on a wide
range of policy issues, such as restructuring, organisational changes, plant closures,
retrenchments and education and training (s 84).
On a limited number of issues the employer is required to reach consensus with the
workplace forum, which effectively amounts to negotiation rather than mere consultation.
In terms of section 86 an employer is required “to consult in an attempt to reach agree-
ment” on issues such as disciplinary procedures and affirmative action.
14.5 The bargaining process
14.5.1 Bargaining unit

A bargaining unit is that part of the workforce in which a union claims recognition and in
respect of which it negotiates. A bargaining unit is a cohesive group of employees who share
a community of interests, such as conditions of employment, methods of payment, physical
proximity, the organisational structure of the firm and the terms of collective agreements.
It is usually left to the parties to determine the bargaining unit by collective agreement. The
demarcation of the bargaining unit is important in establishing the union’s bargaining

entitlement and other rights.
14.5.2 Bargaining levels

“Bargaining levels” refers to bargaining at plant (enterprise) level or at sector level. Plant-
level bargaining is negotiations between an individual employer and a union in the work-
place. Sector, industry or centralised bargaining involves negotiations between one or more
unions and a group of employers (one or more employers’ organisations) in a particular
industry or economic sector. Sectoral-level bargaining is preferred by the bigger unions and
the LRA promotes it. The rationale behind centralised bargaining is that employers through-
out the industry pay the same wages and implement the same conditions of employment.
The main forum for centralised bargaining is a bargaining council. Unions and employ-
ers’ organisations that are parties to the council negotiate and conclude collective agree-
ments. These agreements bind the parties who have concluded them, but can be extended
to non-parties. Employees may not strike and employers may not lock out employees over
issues that are regulated in the council collective agreements.
Bargaining at both plant and industry level is possible. Unions and employers, through
agreement, determine minima for the industry, while one union negotiates actual wages
and conditions of employment at plant level. The latter form of bargaining, of course,
results in differentiated wages and conditions within the industry.
The courts have declined to compel bargaining at a specific level and, unless bargaining
at a particular level will result in unfairness or discrimination, the parties will have to deter-
mine the level or levels of bargaining through agreement.
14.5.3 Bargaining agenda

The LRA of 1995 does not prescribe to parties what issues they should negotiate and leave it
to the parties to negotiate “any matter of mutual interest”. A matter of mutual interest is any
issue concerning the employment relationship, i.e. the relationship between employer and
employees or a matter that concerns the relationship between employer and the union.
Bargaining over matters that are clearly illegal or contrary to public policy is not permis-
sible. It follows then, for example, that bargaining to prohibit employees from belonging to
unions, to accept wages less than the prescribed minimum or to contract out of statutory
rights must fall foul of legitimate bargaining.
14.5.4 Bargaining conduct

Under the unfair labour practice jurisdiction of the past the Industrial Court did not only
compel employers to bargain with trade unions, but also ruled on how the bargaining game
should be played. A number of bargaining practices were struck down as unfair, for example,
unreasonable pre-conditions to bargaining, premature unilateral action, illegitimate pres-
sure tactics and denial of union access, failure to disclose information and delaying tactics,
by-passing a recognised union to negotiate directly with employees and unilaterally imple-
menting proposals not negotiated.
Good faith bargaining is undoubtedly an important element of the bargaining process.
This means that the parties must conduct themselves in a manner conducive to reaching
consensus. However, in terms of the 1995 LRA the courts and arbitrators have little scope to
promote the concept of good faith bargaining as it is no longer possible to strike down a
bargaining practice as an “unfair labour practice”. This, of course, does not mean that
employers are now at liberty to undermine a trade union or the bargaining process.
Chapter 2 of the LRA allows the Labour Court some measure of ability to scrutinise em-
ployer conduct which threatens to undermine the role of the trade union as employees may
not be discriminated against for participation in lawful union activities or for exercising any
of the rights conferred by the Act. In SACCAWU v OK Bazaars 1995 (3) SA 622 (A), decided
under the 1956 LRA, it was held that it was legitimate for an employer to offer financial
inducements to its employees in an attempt to dissuade them from participating in strike

action. This kind of practice tends to undermine the role of the union and has, therefore,
been outlawed in sections 4 and 5 of the 1995 LRA in light of the fundamental right to
strike.
A union’s rights to disclosure of information and reasonable access to its members in the
workplace furthermore prevent an employer from resorting to dubious practices, such as
bypassing union representatives, hindering communication with union members and
attempting to undermine a union by offering rewards to non-union members or penalising
union members.
Bargaining conduct other than those practices captured by the provisions relating to
freedom of association and organisational rights appears to be largely beyond the reach of
the CCMA and the Labour Court.
14.6 Collective agreements

Part B of Chapter 3 of the LRA regulates collective agreements. A collective agreement is a
written agreement concluded between a registered trade union and an employer or em-
ployers’ organisation and deals with terms and conditions of employment or any other
matter of mutual interest (s 213).
Collective agreements may be negotiated and concluded at plant level or by the parties to
a bargaining or statutory council in the council. A council agreement carries more weight
than a plant-level agreement.
Section 24(1) requires every collective agreement to include a dispute resolution proced-
ure for disputes concerning the interpretation or application of the agreement, which must
be conciliation and arbitration. (Agency shop agreements, closed shop agreements and
settlement agreements do not have to include such a provision.)
A dispute concerning the interpretation or application of a collective agreement is con-
ciliated and arbitrated by the council in accordance with the provisions of the agreement,
unless section 24(2) is applicable.
Section 24(2) confers exclusive jurisdiction on the CCMA to conciliate and arbitrate in-
terpretation or application disputes: (a) where the collective agreement does not contain a
dispute resolution procedure (as required in s 24(1)); (b) if the procedure in the agree-
ment is inoperative; and (c) if a party to the collective agreement has frustrated resolution
of the dispute.
A collective agreement varies a contract of employment if both the employer and em-
ployees concerned are covered by the collective agreement. Even employees who are not
members of the union that is party to the agreement may be bound by the agreement (see
below).
14.6.1 Legal effect of collective agreements (s 23)

Every collective agreement binds:
• the parties to the agreement;
• each party to the agreement and the members of every other party thereto in so far as
the provisions are applicable between them;
• the members of a registered trade union and the employers who are members of a regis-
tered employers’ organisation that are party to the agreement if the agreement regulates
terms and conditions of employment or the conduct of the employers and employees in
relation to each other; and
• employees who are not members of the registered trade union that is party to the
agreement, provided the union party to the agreement commands majority support in
the workplace and provided further that the non-member employees are identified in
the agreement and the agreement expressly binds them.
A collective agreement is binding for a period as agreed and binds every employer who is a
member of the employers’ organisation party to the agreement and every employee who is
a member of the trade union party to the agreement and who was a member at the time it
became binding or who becomes a member after it became binding for the whole period.
The agreement remains binding on these employees and employers whether or not they
continue to be members of the union or the employers’ organisation.
Where a collective agreement has been concluded for an indefinite period, any party
may terminate the agreement by giving reasonable notice to the other parties (unless the
agreement provides otherwise).
Collective agreements concluded in a council may be enforced by a designated agent of
the council. The council may request the Minister to appoint a person as a designated
agent to promote, monitor and enforce compliance with collective agreements. A designat-
ed agent may secure compliance by publicising the contents of the agreement, conducting
inspections and investigating complaints (s 33).
A designated agent may further issue compliance orders, requiring any person bound by
the agreement to comply with that agreement. Any unresolved dispute concerning com-
pliance may be referred to arbitration. This is commonly referred to as a compliance
arbitration. When arbitrating the compliance dispute the appointed arbitrator may deter-
mine any dispute concerning the interpretation or application of a collective agreement.
The arbitrator may make any appropriate award, including ordering any person to pay any
amount owing in terms of the collective agreement, imposing a fine, ordering a party to pay
the cost of the arbitration or confirm, vary or set aside a compliance order issued by the
designated agent. An arbitration award issued by the arbitrator is final and binding and may
be made an order of the Labour Court.
The Minister has published a notice setting out the maximum fines that may be imposed
by an arbitrator. The table of fines is contained in item 29 of Schedule 7 of the LRA.
14.6.2 Agency shop agreements (s 25)

In terms of an agency shop agreement an employer is required to deduct an agreed agency
fee from the wages of non-union employees and pay it over to the union that is party to the
agreement. The employees who are not members of that union must be identified in the
agreement and must be eligible for union membership.
Only a registered majority union (or two or more registered unions acting jointly) may
conclude an agency shop agreement with an employer or employers’ organisation. How-
ever, there is no statutory obligation on an employer or employers’ organisation to con-
clude an agency shop agreement and it is a subject matter for negotiation.
An agency shop agreement is binding only if it provides that non-union employees are
not compelled to become members of the trade union, and the agreed agency fee may not
be an amount in excess of the subscription payable by union members or, if there are two
or more unions party to the agreement, in excess of the highest amount of the subscription
that would apply to an employee.
The agency fees must be paid into a separate banking account and is administered by the
union. Proper books must be kept and audits must be done of this account. Any interested
person may inspect the auditor’s report. Agency fees may not be paid to a political party as
an affiliation fee or to support the election of any person standing for office of a political
party. Furthermore, this money may not be used for any expenditure that does not advance
or protect the socio-economic interests of all employees. A conscientious objector may
request the employer to pay the agency fees into a fund administered by the Department of
Labour rather than into an account administered by the union.
An employer is allowed to deduct the agreed agency fee from the wages of an employee
without his authorisation.
An employer or employers’ organisation alleging that a union no longer enjoys majority

support is required to give written notice to this effect. The union then has 90 days from
the date of the notice to establish that it is a majority union. If, after the 90-day period, the
union fails to establish its majority representation, the employer must give the union and
the employees covered by the agency shop agreement 30 days’ notice of termination, after
which the agreement will terminate.
14.6.3 Closed shop agreements (s 26)

A registered majority union (or two or more unions acting jointly) may negotiate and con-
clude a closed shop agreement with an employer. A closed shop agreement means that all
employees must join and be members of the trade union that is party to the agreement.
Conscientious objectors are, however, not obliged to join the union.
A closed shop agreement is binding only if a ballot has been held amongst those em-
ployees to be covered by the agreement and two-thirds of them supported the arrangement.
The ballot is to be conducted in accordance with the provisions of a collective agreement, if
any, or the guidelines published by the CCMA. Only post-entry closed shop agreements are
provided for, i.e. union membership is not required before employment commences.
No deductions made from employees’ wages in terms of a closed shop agreement may be
paid to political parties as affiliation fees or for the election of a person to a political office.
Nor may the money be used in any manner that does not advance or protect the socio-
economic interests of the employees.
Where a closed shop agreement has been in existence for three years or more, support
for its maintenance may be tested. In order to do so, one third of the employees covered by
the agreement must sign a petition, calling for its termination. If the majority of employees
vote against the closed shop agreement, it must be terminated.
A controversial provision is included in section 26(6) in terms of which an employee who
refuses to join the union may be dismissed. This, many argue, infringes the right to free-
dom of association. The constitutionality of this section has not been tested and therefore
section 26(6) remains applicable. It is to be noted that employees already in employment at
the time a closed shop agreement takes effect may not be dismissed for refusing to join the
union.
Section 26(6) continues to state that employees who are refused union membership or
who are fairly expelled from the union may also be dismissed. Membership may, however,
not be unfairly refused or a member may not be unfairly expelled. An employee who has
been refused membership or who has been expelled from the union may have to pay an
agency fee (if an agency shop agreement is applicable).
An employee who was dismissed because he was refused union membership or he was
expelled from the union may refer a dismissal dispute to the CCMA for conciliation and, if
not resolved, to the Labour Court for adjudication. If the dismissal is found to have been
unfair, the Labour Court may order compensation, in which case the trade union will be
ordered to pay the compensation.
A registered union that represents a substantial number of the employees covered by a
closed shop agreement may notify the parties to the agreement of its intention to apply to
become a party to the agreement. Within 30 days of this notice the employer must convene
a meeting of the parties to the agreement and the applicant union in order to consider the
application. If the application is refused, the union may refer the dispute to the CCMA for
conciliation and serve a copy of the referral on the other parties to the dispute. If concilia-
tion is unsuccessful the dispute may be referred to the Labour Court for adjudication.
14.6.4 Funding agreements (s 32A)

A funding agreement is a collective agreement concluded in a bargaining council to fund:
• the operational and administrative activities of the council;
• a dispute resolution fund;
• a training and education scheme;

• pension, provident, medical aid, sick pay, holiday or unemployment schemes or similar
schemes for the benefit of the parties to the council and their members.
All bargaining councils have concluded funding agreements. Employers and employees,
through their employers’ organisations and trade unions, contribute monthly levies to the
council. These levies are typically used to run the council, to fund dispute resolution and to
support medical aid and provident or pension funds.
Funding agreements may be renewed, for a period of 12 months at a time, if the agree-
ment has expired and if the parties to the council have not timeously concluded a new
agreement. Before renewing a funding agreement, the Minister must call for public com-
ment by way of a notice in the Government Gazette.
The Minister’s decision to renew a funding agreement may be taken on review to the
Labour Court. The decision remains in force until the Labour Court, or thereafter the
Labour Appeal Court or the Constitutional Court, has finally decided the matter.
14.6.5 Resolution of disputes about collective agreements (s 24)

A dispute about the interpretation or application of a council collective agreement is refer-
red to the bargaining council for conciliation and arbitration, unless section 24(2) applies.
In three instances the CCMA is responsible for, and has exclusive jurisdiction, to concili-
ate and arbitrate interpretation and application disputes: if the council agreement does not
incorporate a dispute resolution procedure, if the agreement includes a procedure, but
that procedure has become inoperative and where one of the parties frustrates the dispute
procedure (s 24(2)).
Disputes concerning the interpretation or application of a settlement agreement may be
referred to a bargaining council or, if there is no council with jurisdiction, to the CCMA for
conciliation and arbitration (s 24(8)).
The CCMA furthermore has exclusive jurisdiction to conciliate and arbitrate interpret-
ation and application disputes concerning agency shop and closed shop agreements
(s 24(6)).
Generally, an arbitration award is final and binding with no right of appeal against it
(but it can be taken on review to the Labour Court). However, in the case of closed shop
6
and agency shop agreements a limited right to appeal to the Labour Court exits. Where
the dispute arose as a result of the payment of closed shop or agency shop fees to a political
party as affiliation fees or for the election of a person to a political office or where these
fees have been expended in a manner which does not advance or protect the socio-
economic interests of employees and, in the case of agency shop agreements, where the
agency fees deducted from non-members’ wages were not paid into a separate account, any
person bound by the award may appeal to the Labour Court.
The dispute resolution path for interpretation and application disputes (other than
7
closed shop and agency shop agreements) may be illustrated as follows:
________________________
6 A limited right of appeal against an arbitration award is also allowed in discrimination cases – s 10(8) of
the Employment Equity Act.
7 Flow diagrams 3 and 4 of Sch 4 of the Act (adapted).
Award
Arbitration
Award No resolution
Agreed council
arbitration proced- Conciliation
ure
No resolution CCMA
Agreed No agreed procedure,

council concilia- agreed procedure
OR
tion inoperative or its oper-
procedure ation frustrated by a party
Dispute about interpretation

or application of collective
agreement
Questions
Question 1
Is there a duty to bargain in terms of the Labour Relations Act of 1995? Explain. (12)
Question 2
A trade union has a 51% membership at Coltex (Pty) Ltd.
2.1 Discuss the procedure to be followed if the union wants to exercise the right of access
to the workplace and the right to stop-order facilities. (8)
Hint: See s 21; SACCAWU v Speciality Stores Ltd [1998] 4 BLLR 352 (LAC); PTWU obo
members v Sahar Security Services [2004] 3 BALR 373 (CCMA); Health & Hygiene Services
v Seedat NO & Others [1999] 11 BLLR 1153 (LC); CEPPWAWU v Tekwani Sawmills (Pty)
Ltd [2004] 9 BALR 1094 (CCMA).
2.2 Assume that the management of Coltex (Pty) Ltd refuses to deduct union subscription
fees from the employees’ wages. In consequence the union is in dispute with the com-
pany. Discuss the procedure to be followed in order to have this dispute resolved. (5)
Hint: See s 22.
2.3 When the union seeks to conclude an agency shop agreement with the company,
management refuses because, according to its records, the union enjoys only 48%
support of the employees in the company. The union, however, maintains that it has
already recruited and signed up 51% of the employees. Explain how a dispute with
regard to the representativeness of the union is to be resolved. (5)
Question 3
Trade union A and employer B have negotiated and concluded a collective agreement pro-
viding for organisational rights, a resolution procedure for disputes about the interpretation
and application of the agreement, a resolution procedure for disputes about organisational
rights and thresholds of representativeness. Draft this agreement for the company and
trade union of your choice. Assume that union A is a registered majority union. (30)
Question 4
Astron (Pty) Ltd, a manufacturer of car batteries, employs 200 employees of whom 51 have
joined the Motor and Allied Workers Union (MAWU) and 73 have joined the General
Workers Union (GWU). MAWU demands access to the workplace, stop-order facilities and
disclosure of information since it wishes to negotiate an incentive bonus scheme. Manage-
ment notifies MAWU that it is willing to conclude a collective agreement with regard to
access and stop-order facilities, but refuses to disclose the required information.
4.1 Is management obliged to grant the right of disclosure to MAWU? Explain and as-
sume that MAWU’s argument is that it has a significant interest and a substantial
number of members in the workplace. (10)
4.2 Assume that MAWU and GWU act jointly in requesting disclosure. Management re-
fuses to disclose any information because, according to management, the unions are
not sufficiently representative to be entitled to disclosure. The unions are in dispute
with management and want the dispute resolved. Discuss the procedure to be fol-
lowed in order to have this dispute resolved. (8)
Hint: See s 16; NPSU & Others v The National Negotiating Forum & Others [1999] 4 BLLR 361
(LC); NUMSA obo members v Behr Climate & Control [2004] 3 BALR 364 (CCMA); Langa &
Others v Active Packaging (Pty) Ltd [2001] 1 BLLR 37 (LAC).
Question 5
Assume employer A refuses to bargain with trade union B. What, if anything, can B do to
force A to bargain? Explain. Include in your answer a description of the concept “refusal to
bargain”. (12)
Question 6
An arbitration award is generally final and binding with no right of appeal against it. How-
ever, in two instances it is possible to appeal against a CCMA award. Discuss the circum-
stances in which such a right of appeal lies. (8)
Hint: S 24(7) of the LRA and s 10 of the EEA.
Question 7
An agency shop agreement has been concluded between employer A and trade union B.
7.1 Discuss the main characteristics of an agency shop agreement. (5)
7.2 According to A, the union does not enjoy majority membership anymore and there-
fore A wishes to terminate the agency shop agreement. Discuss the requirements that
should be complied with in order to terminate such an agreement. (5)
Question 8
Freedom of association is guaranteed in the Constitution, as well as the Labour Relations
Act of 1995. Give your opinion as to the constitutionality of a closed shop agreement vis-à-
vis the right to freedom of association. (8)
Question 9
A closed shop agreement is in existence between employer A and trade union B. Mr X has
just been employed by the company, but he refuses to join the union.
9.1 Can X be dismissed as a result of his refusal to join the union? Briefly explain. (3)
9.2 Assume that X refuses to join the union on conscientious grounds. Can he be dis-
missed? (3)
9.3 Assume that X wishes to join the union, but his application for membership is re-
fused on the grounds of his race. Can X be dismissed because he is not a member of
the union? Explain. (3)
Question 10
Rand Mining Company employs 2 000 employees. These employees have been deployed to
work at the three mines owned by the company in Johannesburg, Rustenburg and Welkom.
The staff component at each of the mines is as follows:
• at the mine in Johannesburg: five managers, five assistant managers and five engineers,
who have been employed as independent contractors. In addition, there are a number of
supervisors and ‘ordinary employees’ to make up a total of 885 employees other than the
managers and engineers;
• at the mine in Rustenburg: three managers, three assistant managers and three engin-
eers, employed as contractors. The supervisory and ordinary staff make up a total of 478;
• at the mine in Welkom the staff component is the same as at Rustenburg.
The National Union of Mineworkers (NUM) has recruited members at all three mines.
Assume that a bargaining council has been established for the mining industry and NUM is
a party to the council. Rand Mining has joined the Chamber of Mines, an employer’s
organisation, who is also a party to the council.
NUM has recruited 101 members at the Welkom mine, 339 members at the Rustenburg
mine and 699 members at the mine in Johannesburg.
10.1 NUM approaches the management of Rand Mining Company with a request to exer-
cise organisational rights. Management responds by informing NUM that it cannot
exercise any organisational rights at the Welkom mine because of its small member-
ship there. NUM argues that it is entitled to all the rights accorded by the LRA at all
three mines. Consider both the company’s and the union’s argument and explain
whether NUM is entitled to organisational rights at any or all three of the mines. (10)
10.2 Consider NUM’s representativeness and then list the organisational rights, if any, that
it is entitled to. (8)
10.3 Explain what NUM must do to exercise its organisational rights (assuming that it is
entitled to such rights). (6)
10.4 The Welkom mine has made an unexpectedly large profit over the past financial
year. As a result, NUM approaches the management of the Welkom mine with a
request to negotiate bonuses for its members at that mine only. Management’s
response is that it will not negotiate bonuses because negotiations have to take place
in the bargaining council.
(a) Briefly explain whether management’s argument is valid. (5)
(b) When management declares its unwillingness to negotiate bonuses, NUM is of
the opinion that management should negotiate and declares a dispute. Identify
this type of dispute and describe how it can be resolved. (6)
Appendix 1
A strategy for negotiations
• Collect data on, e.g., trends in wages and conditions of service,

inflation and cost of living
PRE- • Collect data on other party
NEGOTIATION
• Identify the market
PERIOD
• Decide on strategies and tactics to be used during negotiations
(but change these if necessary while negotiating)
• Negotiators to have knowledge of conditions of employment,

NEGOTIATION agreements and trends in similar industries
TEAMS
• Do not include chief executive of company in team
• Union submits demands before first meeting

• Company may submit responding proposals
• At the first meeting clarify demands and counter-proposals and
assess which issues are more important
NEGOTIATION • The bargaining range is the area between the union’s demands
PROCESS and the company’s first offer and it sets the limits within which
to negotiate
• A tacit acceptance of a game being played exists, i.e. not to
compromise too easily and not to hold out too long
• The settlement zone is the point where a compromise is possible
OUTCOME OF
When the parties have settled all issues an agreement is drawn up
COLLECTIVE
and signed by them
BARGAINING
Appendix 2
(The following is an abbreviated version of a collective agreement that recognises a union as a
bargaining agent.)
RECOGNITION AGREEMENT
between
United Wines Co Ltd
(hereinafter referred to as the company)
and
National Wine, Liquor & Allied Workers Union
(hereinafter referred to as the union)
1. Objectives
1.1 This agreement regulates the relationship between the company and the union.
1.2 The parties to this agreement acknowledge:
• that sound and fair industrial relations are in the interest of both parties;
• that it is to the parties’ mutual benefit to formalise and regulate their relationship and to
have clearly stated rules and procedures which will reduce the possibility of conflict be-
tween management and labour;
• the right of the union to represent its members;
• the right of management to direct and manage the company.
2. Definitions
Unless otherwise indicated in the content of this agreement
Alternate shop steward shall mean . . .
The company or business shall mean . . .
Office-bearer shall mean . . .
Official of the union shall mean . . .
Representative with regards to disciplinary procedures shall mean . . .
Shop steward committee shall mean . . .
Union shall mean . . .
Union member shall mean . . .
Workers shall mean . . .
3. Recognition
3.1 The company recognises the union as the representative of its members and will continue
to do so while it maintains majority representation of the employees in the defined bargain-
ing unit, subject to termination of this agreement as set out in par 3.3 and par 23.
3.2 Only employees who are paid-up members of the union shall be regarded as members.
3.3 The company may ask for proof of membership, which may be established in a manner
agreed upon by both the union and the company. Should the union membership prove to
be less than half the employees in the defined bargaining unit, the company may withdraw
recognition of the union, subject to a notice period of 2 (two) months, during which time
the union may endeavour to establish a majority membership.
3.4 Subject to the terms of this agreement the company recognises the right of the union to
bargain collectively on the wages and conditions of service of its members.
3.5 The company and the union agree to consultation by their representatives on a regular basis
over workplace issues which affect industrial relations or the welfare of their members.
3.6 The recognition accorded in terms of this clause shall not affect the right of management
to communicate and consult with employees, provided this does not undermine the struc-
ture and procedures set out in this agreement.
4. Bargaining unit
The bargaining unit for the purpose of this agreement is defined as . . .
5. Freedom of association
5.1 The company and the union recognise the principle of freedom of association, by which is
understood that each worker is free to belong to the union of his/her choice or not to be-
long to any union.
5.2 The company shall not victimise or discriminate against any worker who chooses to belong
to a union or who is elected to represent union members.
5.3 The union shall not victimise or discriminate against a worker who chooses not to belong to
a union.
6. Union subscriptions
The company agrees to deduct union subscriptions weekly from the wages of union members,
provided such members have consented in writing to such deduction.
7. Appointment of shop stewards
7.1 Shop stewards shall be elected in accordance with the constitution of the union.
7.2 The union shall be represented by 2 (two) shop stewards and 2 (two) alternate shop
stewards.
7.3 The election of the shop stewards and alternate shop stewards shall take place during a
general meeting of the shop stewards and the union members in terms of par 13.
7.4 The union shall in writing notify the company within 5 (five) days of such election of the
names of the shop stewards and alternate shop stewards.
8. Rights and duties of shop stewards
8.1 Shop stewards shall function in terms of the union constitution and the procedures and
provisions of this agreement and ensure that the provisions of this agreement are adhered
to by union members.
8.2 Shop stewards shall not leave their work stations without prior permission of management,
which permission shall not be unreasonably withheld.
8.3 A shop steward shall have access to other shop stewards for brief discussions during working
time, provided that such discussions shall not disrupt the business of the company.
8.4 A shop steward’s term of office shall cease under the following circumstances:
• upon his resignation as a shop steward;
• if he ceases to be a union member;
• if he is promoted outside the bargaining unit;
• if the majority of union members request him to vacate his position and the union
authorises his removal from office and informs management in writing thereof;
• if the union does not enjoy the membership of the majority of the workers and recogni-
tion is withdrawn in terms of par 3.
9. Shop steward committee
9.1 The shop stewards and alternate shop stewards appointed in terms of par 7 of this agree-
ment shall constitute the shop steward committee and they may elect one shop steward to
serve as the senior shop steward.
9.2 The union shall notify the company in writing within 5 (five) days of the names of the
chairperson, vice-chairperson, secretary and other shop stewards who make up the shop
steward committee and/or the senior shop steward.
10. Access
Union officials shall have reasonable access to the premises of the company in order to conduct
union business with their members. The union shall, however, obtain permission from man-
agement and shall make the necessary arrangements in writing with management prior to a visit
to the premises.
11. Meetings of shop steward committee and management
11.1 The shop steward committee and management may meet regularly at either party’s re-
quest in writing. Such meetings shall be held at the company premises.
11.2 An agenda shall be submitted by the party requesting the meeting or by both parties prior
to the meeting.
11.3 Minutes of these meetings shall be kept separately by each party.
11.4 Report back meetings on meetings held between the shop steward committee and man-
agement shall be arranged by a shop steward and shall be held in the cloakroom at a time
granted by management.
12. Shop steward committee caucus meetings
12.1 The shop steward committee will be allowed to meet on company premises once per
month between 17:00 and 18:00 on Mondays to Thursdays, provided that management is
notified in writing thereof at least 2 (two) days prior to such meetings.
12.2 When such a meeting is held each shop steward and alternate shop steward who attends
the meeting shall arrange for another worker as substitute to take his/her place/work sta-
tion while the meeting is in progress.
13. General meetings of union members
The shop steward committee and/or union officials may hold general meetings with their mem-
bers in the cloakroom on company premises, provided such meetings are held between 17:00
and 18:00 on Mondays to Thursdays and provided further that such meetings shall be limited to
one per calendar month. The union officials and/or shop stewards must notify management of
such a meeting in writing and such notice must reach management at least 2 (two) days prior to
the day on which the proposed meeting is to be held.
14. Access to notice board
The shop stewards shall be entitled to display notices and/or announcements concerning union
activities on the company notice board, provided such notices/announcements are not of a pol-
itical nature.
15. Negotiations
15.1 The company and the union shall convene a meeting of the negotiating committee annu-
ally for the purpose of negotiating a substantive agreement on wages, conditions of service
and grades.
15.2 Such meeting shall be held as soon as possible after the end of February of each year on a
date agreed upon by both parties.
15.3 The negotiating committee may comprise not more than 4 (four) shop stewards and 2
(two) union officials and not more than 6 (six) company representatives.
15.4 Negotiations on other issues affecting the interests of the workers and/or the company
shall take place at the request of either party and shall be held on a date agreed upon by
both parties and shall be attended by as many representatives on each side as the parties
agree.
16. The negotiating procedure
16.1 The union shall submit its demands in writing by a date agreed upon by the parties, but
not later than 30 (thirty) days prior to the first meeting.
16.2 The company may add its own proposals to the demands of the union and will forward an
agenda for the first meeting to the union.
16.3 A meeting shall take place on a date and at a time and place agreed upon by the parties.
16.4 The union will be granted access to the cloakroom to report back to its members as it may
deem necessary during negotiations and at the conclusion of the negotiations, provided
that work is not disrupted thereby or, alternatively, a general meeting may be arranged in
terms of par 13.
16.5 The negotiating committee shall reduce all agreements to writing and such written agree-
ment shall be signed by the General Secretary or his nominee on behalf of the union and
by the General Manager of the company or his nominee. Such agreement shall only be-
come binding once the last signing party has affixed his signature to the agreement and
shall remain binding for a period agreed upon by the parties at the time of reaching the
agreement and subject to the provisions of par 23. The time period so agreed shall form
part of the agreement.
16.6 The implementation date of any amendment to wages or conditions of service shall be
1 May of every year or such other date as agreed upon by the parties.
16.7 In the event of the company and the union failing to reach an agreement at their first
meeting, any number of subsequent meetings as agreed upon by the parties may be held
in order to endeavour to reach an agreement.
16.8 Should the parties fail to reach an agreement after subsequent meetings and it becomes
clear that no agreement will be reached, either party may resort to the dispute procedure.
17. The dispute procedure
17.1 A dispute arising from the employment relationship shall be considered to exist when
either party notifies the other of such dispute in writing, setting forth in precise terms the
nature of the dispute and proposed terms of settlement.
17.2 The answering party shall within one week of receipt of the declaration of dispute serve
on the aggrieved party an answering statement responding to the allegations in the decla-
ration of dispute and further setting out a statement of the answering party’s position in
regard to the solution requested.
17.3 A meeting shall be convened by the parties within 5 (five) working days of the receipt by
the aggrieved party of the answering party’s reply.
17.4 The meeting shall be attended by not more than 3 (three) representatives of either party.
17.5 At this meeting the parties shall endeavour to resolve the dispute, failing which a second
meeting shall be convened within 3 (three) days.
17.6 Should the dispute not be resolved by the second meeting, the parties may by mutual
agreement agree to a further meeting or the appointment of a mediator or arbitrator (or
refer the dispute to the CCMA).
17.7 The parties agree that neither one shall take any industrial action when they have agreed
on mediation or arbitration, while mediation or arbitration is in progress or after the final
award of an arbitrator has been made.
18. Peace clause
18.1 Neither party shall resort to industrial action until the procedures laid down by this agree-
ment have been exhausted.
18.2 Both parties undertake to honour this agreement and to do their best to maintain indus-
trial peace.
18.3 If industrial action does take place the union and management shall meet and make every
endeavour to resolve the problem and restore normal working conditions.
18.4 The company agrees not to dismiss workers who participate in a protected strike. How-
ever, the parties acknowledge that misconduct by strikers or the company’s operational
requirements may lead to dismissal.
19. Grievance procedure
Both parties agree to abide by the grievance procedure as set out in Annexure 1.
20. Disciplinary procedure
Both parties agree to abide by the disciplinary procedure as set out in Annexure 2.
21. Retrenchment procedure

Both parties agree to abide by the retrenchment procedure as set out in Annexure 3.
22. Health and safety
22.1 Any health and safety matter may be raised as a grievance and dealt with in accordance
with the steps of the grievance procedure.
22.2 The company agrees to consult and share information with the union on any changes or
developments in management decision-making that may materially affect the health or
safety of the workforce.
22.3 Both parties commit themselves to ensuring the health and safety of the workplace and
the workers.
22.4 Where a serious, reportable accident occurs and a union member is involved, a union
official shall be informed within 24 (twenty-four) hours and 2 (two) union representatives
shall be entitled to participate in any accident investigation which may follow.
22.5 Management shall appoint one worker as safety representative for every 50 (fifty) workers.
Such safety representative shall investigate the workplace once per month and report in
writing any dangerous or potentially dangerous situations within the workplace to man-
agement.
23. Duration of this agreement
23.1 This agreement shall come into effect on the date that the last signing party affixes its sig-
nature hereto and shall be binding on both parties for a period of three years.
23.2 The agreement may be terminated if the union’s membership falls below 50% of the work-
ers as defined in the bargaining unit in par 4. The company shall give the union 8 (eight)
weeks’ notice of its intention to terminate the agreement under such circumstances.
24. Amendments to the agreement
Any proposed amendments to the agreement may be forwarded in writing to the negotiating
committee and a meeting shall be convened within 30 (thirty) days to consider such proposal.
The agreement may only be amended by mutual consent of the parties and such amendment(s)
must be reduced to writing and signed by or on behalf of both parties.
(Signed)
Appendix 3
CODE OF GOOD PRACTICE:

COLLECTIVE BARGAINING, INDUSTRIAL ACTION AND PICKETING
(Note to reader: only Part B of the Code, applicable to collective bargaining, is reproduced
here.)
PART B COLLECTIVE BARGAINING

4. Collective bargaining and disputes of mutual interest.—(1) Collective bargaining is a
voluntary process in which organised labour in the form of trade unions and employers or
employers’ organisations negotiate collective agreements with each other to determine wages,
terms and conditions of employment or other matters of mutual interest. The collective bargain-
ing process may be established institutionally, by agreement or in practice.
(2) The Act provides an institutional form for sectoral bargaining in the form of bar-
gaining councils by providing machinery for the voluntary establishment of a bargaining council
by trade unions and employer organisations in a sector and their registration as such by the
Registrar of Labour Relations if their constitution provides for the scope, membership, govern-
ance, the negotiation of collective agreements and dispute procedures in accordance with the
Act.
(3) The Act provides for collective bargaining by agreement in a number of ways –
(a) It specifically empowers bargaining councils to determine by way of a collective
agreement what matters for collective bargaining may be devolved to the level of
the workplace.
(b) It permits multi-employer bargaining arrangements and provides for the enforce-
ability of collective agreements entered into in such arrangements.
(c) It permits collective bargaining at the level of the workplace and the enforceability
of collective agreements at this level. The typical form is the recognition agreement
which includes a negotiation and dispute procedure to regulate the collective bar-
gaining relationship between the employer and the trade union or unions that may
affect one or more workplaces of the employer.
(d) In circumstances where there is no bargaining council or agreement to bargain, a
group of workers or a trade union may bargain collectively as a matter of practice
by making a demand on an employer under threat of a strike. Similarly, an employ-
er or employers’ organisation may make demands and threaten to unilaterally in-
troduce them under a threat of a lockout. In each case, before any industrial action
may be engaged in, the dispute must be referred for conciliation to the Commis-
sion for Conciliation Mediation and Arbitration (the CCMA) or to a bargaining
council with jurisdiction. The conciliation of such a dispute is in effect a facilitated
exercise in collective bargaining, the object of which, is a settlement agreement (in
the case of demands made by or against a group of workers) or a collective agree-
ment (in the case of demands made by or against a trade union).
(4) There is no constitutional or statutory duty to bargain. Collective bargaining under
the Act is voluntary and employers (other than the State) and trade unions are permitted to
determine their collective bargaining relationships in the institutional form of bargaining coun-
cils at sectoral level (the form promoted by the Act) or by way of a recognition agreement at
multi-employer or workplace level. However, once having established a collective bargaining
relationship in the form of a bargaining council constitution or a recognition agreement, the
parties have thus by agreement implicitly committed themselves to a duty to bargain and the
duty to bargain under such circumstances does not arise statutorily but contractually.
(5) In so far as the State is concerned, although the establishment of a structure of col-
lective bargaining is statutorily determined, its constitution is determined by the State as em-
ployer and the trade unions. The duty to bargain, too, does not arise statutorily but contractually
from the agreed bargaining council constitution.
5. Fundamental commitments.—(1) The following constitute fundamental commitments

on the part of trade unions and their members, trade union federations, employers and employ-
ers’ organisations for orderly and constructive collective bargaining and peaceful industrial and
protest action –
(a) to promote trust and develop mutual understanding and constructive engagement
in their engagements with each other;
(b) to promote the importance of democracy and dialogue at the level of the work-
place;
(c) to promote maximum participation and accountability in the preparation for, the
conduct and the conclusion of negotiations by –
(i) members and worker representatives of the trade union party to the negoti-
ations in terms of the Act;
(ii) if represented by an employers’ organisation, the members of that organ-
isation;
(d) to take all the necessary measures to ensure the competence of negotiators ap-
pointed to represent the parties to the negotiations;
(e) to adhere to the principles of good faith bargaining; and
(f) that violence, intimidation, damage to property and the use of dangerous weapons
in the pursuit of collective bargaining, industrial action or protest action is con-
demned in the strongest terms and should not be tolerated in the workplace, on
picket lines or in any conduct related or incidental to such industrial and protest
action;
(g) that dangerous weapons have no place in industrial action and cultural instruments
should not be used to intimidate or cause harm;
(h) that the parties commit to prioritising and dealing with violence related conduct in
industrial and protest action in an expeditious manner.
(2) In the context of the constitutional right to picket peacefully and unarmed and
applying the relevant factors listed in section 3 (2) of the Dangerous Weapons Act, 15 of 2013 to
determine whether a person intends to use the object as a dangerous weapon, a dangerous
weapon is any object that could be used to injure or threaten a person or damage property. In
the context of a picket there is no other justifiable use for the possession or display of such an
object.
(3) The relevant factors in the context of a picket listed in section 3 (2) of the Danger-
ous Weapons Act are as follows –
(a) The place and time where the person is found;
(b) The behaviour of the person, including the making of any threat or the display of
intimidatory behaviour;
(c) The manner in which the object is carried or displayed;
(d) Any other relevant factors, including any explanation the person may wish to
provide for his or her possession of the object provided that this does not impose
an obligation on the person to explain the possession of the object.
6. Promotion of collective bargaining.—(1) ILO Convention 98 on Collective Bargaining
requires governments to take measures appropriate to national conditions to encourage and
promote the full development and utilisation of machinery for voluntary negotiation between
employers or employers’ organisations and workers’ organisations, with a view to the regulation
of terms and conditions of employment by means of collective agreements.
(2) The Act promotes collective bargaining in a number of ways by –
(a) encouraging collective bargaining at sectoral level by providing a statutory frame-
work for collective bargaining in the form of bargaining councils;
(b) permitting collective bargaining in single and multi-employer workplaces;
(c) providing for organisational rights at the level of the workplace.
(3) Nothing in the Act prevents collective bargaining at a national level to set thresholds
for collective bargaining at sectoral and workplace levels provided that it is by agreement.
(4) The Government and the federations of trade unions and employer organisations in
NEDLAC undertake to engage on a periodic basis to develop legislative and other measures to
promote collective bargaining at centralised, sectoral and workplace levels and to deepen the
representativeness of trade unions and employer organisations.
7. Principles of good faith bargaining.—(1) Every trade union, employer, employers’ or-
ganisation and the negotiators appointed to represent them commit themselves to adhere to the
principles of good faith bargaining and mutual respect set out below.
(2) Disclosure of information is essential for a trade union to effectively engage in col-
lective bargaining. All relevant information should be disclosed to the trade union on request
and subject to confidentiality and clause 12 of the Act.
(3) All demands and responses to those demands from a party should be in writing.
(4) A party may only add a new demand during the course of negotiations if the new
demand is introduced for the purpose of finding a settlement and only with the agreement of
the other party.
(5) An employer should not unilaterally alter terms and conditions of employment dur-
ing the course of negotiations prior to deadlock being reached in terms of any collectively
agreed dispute procedure, failing which, when a period of 30 (thirty) days has lapsed after the
referral of the dispute to the CCMA or Bargaining Council, or a certificate of non-resolution has
been issued.
(6) Negotiations should be conducted in a rational and courteous manner and disrup-
tive or abusive behaviour must be avoided.
(7) Parties should attend agreed negotiation meetings unless there is a good reason for
not attending, in which case the party that cannot attend should give reasonable notice of its
non-attendance to avoid wasteful expenditure and inconvenience to the other party or parties to
such negotiations.
(8) A party should engage each other in a constructive manner and not unreasonably
conduct itself prior to or during negotiations in a manner that has the effect of unreasonably
delaying negotiations by failing to agree dates and times for negotiation meetings, failing to
attend agreed meetings, changing negotiators, failing to secure a mandate or refusing to modify
demands.
(9) Parties should be prepared to modify demands and responses during the course of
negotiations.
(10) Parties should endeavour, as far as possible, to ensure that their negotiators remain
the same throughout the course of negotiations and that they are properly mandated to modify
their demands and responses.
(11) Mandating processes should be conducted in facilities that are conducive to collective
bargaining. Employers should assist this mandating process by providing facilities where possible
and time off as per the Act or any collective agreement for trade union officials or worker
representatives to meet and if need be ballot members as provided for in the Act. If provided,
the trade union should not unreasonably refuse to use the facilities and time off.
(12) Without interfering with a trade union or employers’ organisation’s right to com-
municate with its members as they consider best, the negotiators should endeavour to present
the demands or responses provided by the other side as accurately as possible.
(13) Without interfering with the right of the trade union to communicate with the
members of an employers’ organisation and an employer with its employees, the trade union or
employer should not undermine the bargaining status of union or organisation as the case may
be.
(14) An employer should not bypass a recognised trade union and deal directly with
employees before deadlock or a reasonable period after deadlock in respect of the matters that
are subject of the negotiations in order to allow the trade union to communicate with employ-
ees.
(15) The parties should consider escalating the negotiations to a higher level of man-
agement or union office bearer within their respective organisations to avoid a deadlock and the
resort to industrial action through seeking to settle the differences or exploring the possibility of
voluntarily referring the dispute to binding or advisory arbitration.
(16) The parties should remain open to continue negotiations after a dispute has been
declared.
8. Development and support for negotiators.—(1) Parties to collective bargaining under
the Act commit themselves and their members to develop competent negotiators to engage in
collective bargaining by –
(a) supporting the establishing of training courses on this Code by recognised training
institutions to train negotiators in collective bargaining; and
(b) requiring negotiators to undergo such training;
(2) Each trade union, employer or employers’ organisation should identify specific indi-
viduals for training and appointment as negotiators.
(3) Each employer should grant reasonable paid time off for an employee identified as a
negotiator in terms of (2) above, unless training for collective bargaining, industrial action and
picketing is sufficiently provided for in terms of an existing agreement.
(4) Negotiators of parties should on a regular basis, either jointly or separately, attend
training courses using the same training materials and conducted by recognised training institu-
tions, trade unions or employers’ organisations.
9. Preparing for negotiations.—(1) Subject to the democratic procedures contained in
the collective agreement or the constitutions of trade unions and employers’ organisations, their
respective leaderships should in preparation for the union’s or employer or employers’ organi-
sations’ demands or responses to the extent that it is necessary –
(a) to conduct proper research into the state of the economy, sector, and ability of
individual employers, particularly small, medium and micro-enterprises and new
enterprises, the cost of living, the alleviation of poverty and reduction of wage dif-
ferentials and inequality, and the likely impact of any proposal or response on
employment and health, safety or welfare of employees;
(b) to determine whether there is a need for disclosure of information in order to
prepare a demand or response;
(c) to take advice from labour market experts on employment effects of a proposed
demand or response;
(d) to take advice on settlement rates generally and specific to the sector;
(e) to consider whether any demand or response reduces inequality of treatment; and
(f) to consider whether the demand or response or the extent of the demand or
response cannot be obtained differently through a reconfiguration of the demand
or response by linking increases to productivity or eliminating vertical inequality by
agreeing to longer term agreements.
(2) If a trade union considers it necessary for an employer to disclose information for
the purpose of formulating its demands, it should request the employer in writing to disclose the
information at the earliest opportunity and in accordance with guidelines set out in clause 12 of
this Code.
(3) In order deal with expectations and introduce a sense of realism on the part of
members, the information acquired in the preparation of the demands or responses must be
conveyed to members in order that in securing a mandate for negotiations members are fully
informed.
(4) The parties should formally appoint negotiators for specific negotiations and ensure
that they participate in the preparation for negotiations including the formulation of demands
or responses and the mandating process.
(5) A party should in writing advise other parties to the negotiations of the names of
their appointed negotiators.
(6) Each party should in preparation for negotiations consider the manner in which the
negotiations are to be conducted, including whether to appoint and use a facilitator given the
history of prior negotiations or the nature of the demands or responses and a timetable for the
negotiations.
10. Submission of demands and responses.—(1) A party should submit its demands in
writing or in accordance with any agreed negotiation procedure or practice and in good time
and well in advance of any established implementation date.
(2) The submission should include –
(a) the demand or demands in a clear and concise form;
(b) an outline of its demands;
(c) any request for or response to a request for the disclosure of relevant information
made in terms of this Code;
(d) a proposed timetable for the negotiations which should include alternative dates
and times for a pre-negotiation meeting; and
(e) the names and details of its appointed negotiators.
(3) The party in receipt of a written demand from a trade union should –
(a) acknowledge the receipt in writing;
(b) inform the other party of when it should in accordance with any agreed negotiation
procedure or practice respond to the demands or make demands itself; and
(c) agree or propose alternative dates and times for the pre-negotiation meeting.
(4) A party responding to a demand should submit in writing its response or any demand
of its own to the other party and include in its response –
(a) its response in clear and concise form;
(b) any demand it may have of its own;
(c) an outline of its response and demands;
(d) any response or request for disclosure of information made in terms of this Code;
(e) a response to the proposed timetable for the negotiations; and
(f) the names and details of its appointed negotiators.
11. Commencement of negotiations.—(1) Subject to any agreed procedures and the
nature and size of the bargaining unit, the negotiators should consider holding pre-negotiation
meeting/s to –
(a) agree to a timetable for the negotiations;
(b) decide whether or not to appoint and use a facilitator and if so, agree on a facilita-
tor or request the CCMA or a bargaining council with jurisdiction to appoint a
facilitator;
(c) consider any request for disclosure of information made in terms of the Act and
this Code; and
(d) commit themselves to a good faith declaration by signing the model declaration in
Schedule A to this Code.
(2) At the first negotiation meeting, each party should present a full motivation for its
demands and responses.
12. Use of facilitators.—(1) Parties to collective bargaining should consider the ap-
pointment of a facilitator/s by mutual agreement to facilitate negotiations by –
(a) including the appointment and use of facilitators in negotiation procedures con-
tained in bargaining council constitutions and recognition agreements;
(b) considering the appointment and use of a facilitator in the preparation for negotia-
tions; and
(c) raising the appointment and use of a facilitator with the other party before negotia-
tions commence.
(2) Although it is advisable for parties to a course of negotiations to appoint a facilitator

from the beginning of the negotiations, negotiators should be free to raise the appointment of a
facilitator at any time during the course of negotiations if it could assist the successful conclusion
of the negotiations, particularly in order to break a deadlock.
(3) Facilitators should be appointed to continue facilitation even after a dispute is
declared and particularly if one or both the parties to the negotiations engage in industrial
action.
(4) Trade unions, employers and employers’ organisations that engage in collective
bargaining on a regular basis should consider the appointment of a facilitator or a panel of
facilitators to facilitate their negotiations and their relationship from one course of negotiations
to the next.
13. Disclosure of information.—(1) Disclosure of information of relevant and credible in-
formation is essential for rational collective bargaining and effective consultation at the level of
the workplace. It is an essential ingredient for winning cooperation of employees and building a
culture of trust.
(2) Section 16 (2) of the Act gives a trade union with majority of employees in the work-
place as members the right to require the disclosure of relevant information that should allow
the trade union to engage effectively in collective bargaining or consultation. The information
has to be relevant to the issues being negotiated or consulted on. So for example the financial
information of an employer become relevant if the employer motivates its demand or its refusal
to accept a trade union demand on the grounds of its inability to pay or the employer motivates
its need to retrench on the grounds of financial difficulties. But not all relevant information
needs to be disclosed. Section 16 (5) lists four exceptions –
2
(a) Legally privileged information .
(b) Information the disclosure of which would entail a contravention of a law or a court
order.
(c) Personal information concerning an employee without that employee’s consent.
(d) Confidential information that if disclosed might cause substantial harm to the
employer or an employee such as information that may constitute a threat to the
employer’s security or affect its competitiveness. There are alternatives to the dis-
closure of such information such as agreeing to an auditor or arbitrator to assess
whether the standpoint relied on in the negotiations or the consultations is sup-
ported by the information which the employer does not wish to disclose.
(3) Although the statutory right to disclosure in section 16 is limited to registered trade
unions with a majority of the employees in the workplace as members, employers should disclose
information in accordance with section 16 to any trade union with which it negotiates at the
level of the workplace subject to the ability of the employer party to access the information, and
the requisite agreement by the trade union not to disclose confidential information to third
parties or to agree to a trusted auditor or arbitrator to have access to the information to deter-
mine whether the standpoint that may be relied on in the negotiations or consultations is
supported by the information.
(4) Just as this Code urges the disclosure of credible and relevant information by
employers in order to promote rational negotiations, so does it urge trade unions to use the
information received responsibly and to take that information into account when formulating
demands or responses or when deciding to declare a dispute.
________________________
2 Such as the communications between an employer and its lawyers in respect of any anticipated or pend-
ing litigation.
15
STRIKES AND LOCK-OUTS
15.1 Introduction
Strike action is an essential element in the collective bargaining process because it ensures
that an employer bargains more fairly. Collective refusal to work balances the employer’s
ability to make unilateral decisions, to lock out workers or shut down the business. A strike
is a deliberate and concerted withdrawal of labour and it represents the workers’ ultimate
weapon against the employer. If it is accepted that collective bargaining is the best way to
resolve disputes and that the right to withhold one’s labour (i.e. to strike) is part and parcel
of this process (“collective bargaining without the right to strike is collective begging”),
then it follows, firstly, that the aim of the law should not be to criminalise striking, but to
regulate it. Secondly, the fact that strikers lose their income for the duration of a strike will,
in most cases, automatically limit the duration of the strike. Thirdly, the product market will
not tolerate the employer acceding to unreasonable wage demands by strikers. The fact that
an employer cannot recoup unreasonable wage increases with impunity from the consumer
public places a limit on the wage demands that strikers can reasonably expect to be met
(except if the object of the strike is to destroy the employer, which is highly unlikely, since
by so doing the strikers will also destroy their own livelihoods).
The Labour Relations Act of 1995 (LRA) clearly embraces the view that strikes are func-
tional to collective bargaining and as such the integrity of the bargaining agents is of para-
mount importance. Therefore, strikers should enjoy considerable job security, provided
they play the collective bargaining game according to the rules as laid down by the LRA.
15.2 A right to strike

Section 23 of the Constitution of the Republic of South Africa guarantees the right to
strike, subject to the general limitation provisions contained in section 36 (the “limitations
clause”). Chapter 4 of the LRA gives statutory effect to the constitutional protection afford-
ed industrial action by making it relatively easy to strike legally and by protecting the job
security of strikers if the strike is in compliance with the LRA. Where employees have
complied with the procedural prerequisites, their strike is protected and they cannot be
dismissed for their participation in the strike. However, the right to strike is not unlimited.
This constitutes a radical departure from common law in terms of which a strike was a
material breach of contract, justifying dismissal, and the old LRA which gave employees the
freedom – and not the right – to strike.
The 1995 LRA classifies strikes into three categories:
• protected strikes (s 67) are strikes that conform with the procedural requirements of the
LRA and strike procedures contained in a collective agreement or the constitution of a
bargaining council. The most important consequence is that employees may not be dis-
missed for their involvement in a protected strike;
291
• unprotected strikes (s 68) are strikes that do not conform with the procedural require-
ments in the LRA. The most important consequence is that employees can be dismissed
for striking, provided the dismissals are fair. Procedural and substantive fairness stand-
ards still apply;
• prohibited strikes (s 65(1)) are strikes that are absolutely prohibited by the LRA, for
example, strikes in essential services. The consequences are the same as in the case of
unprotected strikes.
15.3 Definition of a strike

Section 213 of the LRA defines a strike as follows:
Strike means the partial or complete concerted refusal to work, or the retardation or obstruction
of work, by persons who are or have been employed by the same employer or by different
employers, for the purpose of remedying a grievance or resolving a dispute in respect of any mat-
ter of mutual interest between employer and employee, and every reference to work in this defin-
ition includes overtime work, whether it is voluntary or compulsory.
From this definition it is clear that the following elements are prerequisites for the exist-
ence of a strike:
• collective action of employees or ex-employees, having a common goal. An individual
employee who withholds his labour is not on strike. The employees or ex-employees who
participate in a strike must do so in pursuit of a common goal;
• an act or omission, the best known of which includes the refusal or failure to work or to
resume work or the retardation of the progress of work;
• the purpose of refusing to work, etc. is to remedy a grievance or resolve a dispute in
respect of any matter of mutual interest between employees and an employer.
Strike action can take different forms. The more typical strikes are the following:
• economic strikes where employees withdraw their labour to bring about improvements
in their conditions of employment;
• secondary strikes, also known as a sympathy strikes, where employees do not strike to
bring about any improvement in their own conditions of employment, but to put pres-
sure on the employer of other employees;
• go-slow which is a planned reduction in the pace of work, a retardation of production;
• work-to-rule in which employees work strictly according to the prescribed rules with the
result that the pace of work is reduced;
• sit-in strikes, where employees occupy the workplace to obstruct and impede admission
to the workplace.
15.4 Prohibited strikes (absolute limitations on industrial action)

(s 65)
The LRA places an absolute prohibition on strikes and lockouts in certain circumstances.
Section 65 provides that no person may take part in industrial action in any of the following
circumstances:
• if a collective agreement, prohibiting industrial action in respect of the issue in dispute,
is in force;
• if an applicable agreement requires the issue in dispute to be referred to arbitration;
• if the issue in dispute is one that a party has the right to refer to arbitration or to the
Labour Court in terms of the LRA (or in terms of any other employment law), for
example, dismissals, unfair labour practices and unfair discrimination. These are com-
monly referred to as disputes of right;
Strikes and lock-outs 293
• in essential or maintenance services;

• during the first year of a sectoral determination made in terms of the Basic Conditions of
Employment Act if that determination regulates the issue in dispute; and
• when an arbitration award, a collective agreement or a ministerial determination that
regulates the issue in dispute has been made.
If the issue in dispute concerns the organisational rights provided for in sections 12 to 15 of
the LRA the union in question has an election between arbitration by the CCMA or strike
action. If the union chooses a strike, it may not refer the dispute to arbitration for a period
of one year.
15.4.1 Essential services (ss 70–71)

The following are essential services:
• a service which, if interrupted, can endanger the life, personal safety or health of the
whole or any part of the population;
• the parliamentary service; and
• the South African Police Services.
Section 70 requires the Minister to establish, in consultation with NEDLAC, an Essential
Services Committee (ESC) under the auspices of the CCMA. The ESC has indeed been
established, as required, years ago. The main responsibilities of the ESC are to determine
whether a service (or part thereof) should be designated an essential service and to deter-
mine disputes in this regard.
The provisions relating to the composition of the ESC and its functioning underwent
significant changes in the 2014 amendments to the LRA. New sections 70A to 70F were
inserted into the Act. The appointment of the members of the ESC is found in section 70A
and the powers and functions of the ESC in section 70B. Section 70C provides for the
appointment of panels of the ESC and section 70D deals with the powers and functions of
these panels. Section 70E governs the jurisdiction and administration of the ESC, whilst
section 70F empowers the Minister to make regulations for the functioning of the ESC and
its panels.
In terms of section 70A the ESC is to be composed of eight persons: an independent
chairperson and deputy chairperson, both of whom must be senior CCMA commissioners,
and six other persons nominated by organised business, labour and government.
In terms of section 70B the powers and functions of the ESC are to:
• monitor the implementation and observance of essential service determinations and
minimum service agreements and determinations;
• promote effective dispute resolution in essential services;
• develop guidelines for the negotiation of minimum service agreements;
• decide whether to institute investigations into whether the whole or a part of any service
is an essential service; and
• appoint panels to consider whether a service is an essential service and to determine
disputes in this regard.
In terms of section 70C the ESC must assign each matter before it to a panel. In doing so, it
must have regard to the complexity of the matter. A panel must comprise three or five
members, with a CCMA senior commissioner presiding and the others sitting as assessors.
In terms of section 70D the powers and functions of a panel appointed by the ESC are to:
• investigate whether the whole or part of any service is an essential service;
• determine whether to designate the whole or part of that service an essential service;
• determine disputes over whether the whole or part of any service falls within the scope of
a designated essential service;
• determine whether the whole or part of any service is a maintenance service;

• ratify a collective agreement that provides for the maintenance of minimum services in a
service designated as an essential service; and
• determine the minimum services to be maintained in the service that is designated an
essential service.
The decision or finding of the majority of the panel is the decision of the ESC.
Section 70E bestows on the ESC jurisdiction throughout South Africa. The seat of the
ESC is at the head office of the CCMA. The CCMA administers the ESC and the Director of
the CCMA is the accounting officer of the ESC.
A notice must be published in the Government Gazette, inviting representation from interest-
ed parties, before launching an investigation into whether a service is an essential service.
Upon conclusion of the investigation and consideration of any representations, the ESC
panel may designate the whole or part of a service an essential service. A notice to this effect
is published in the Government Gazette (s 71).
When deciding whether to declare a service an essential service, the ESC panel may issue
an order directing parties to negotiate a minimum services agreement within a prescribed
period and if the parties fail to do so, to refer the matter to a bargaining council with
jurisdiction or to the CCMA. If the parties fail to conclude a collective agreement the panel
may determine the minimum services to be maintained in an essential service. If the parties
conclude a collective agreement, the panel may ratify the agreement. Any party to negotia-
tions concerning a minimum services agreement may, subject to any applicable collective
agreement, refer a dispute arising from those negotiations to the bargaining council or
CCMA for conciliation and thereafter to the ESC for determination.
Because employers and employees in essential services are not permitted to resort to
industrial action, section 74 provides for the conciliation and compulsory arbitration of
disputes by a bargaining council or, if no council has jurisdiction, by the CCMA.
15.4.2 Maintenance services (s 75)

A service is a maintenance service if the interruption of that service has the effect of mater-
ial physical destruction to any working area, plant or machinery. For example, the interrup-
tion of the removal of underground water in a mine shaft during a work stoppage may have
the effect of flooding the workplace to the extent that mining the shaft becomes impos-
sible.
If there is no collective agreement regulating a maintenance service, an employer may
apply to the ESC to declare the whole or a part of his operations a maintenance service. If
the ESC approves the application, those employees designated as maintenance workers will
be unable to strike legally and unresolved disputes will have to be referred to a council or, if
there is no council with jurisdiction, to the CCMA for conciliation and compulsory arbitra-
tion. In return for having to forsake the strike weapon an employer may not employ re-
placement labour (“scab labour”) to maintain production during a protected strike if the
whole or a part of his service has been designated a maintenance service (s 76(1)(a)). Since
maintenance workers are not allowed to participate in a protected strike, this provision
envisages the situation where an employer employs maintenance workers and non-
maintenance workers and the latter category of workers participate in a protected strike.
15.5 Protected strikes (s 64)

The 1995 LRA prescribes certain procedures that must be complied with in order to enjoy
the full protection afforded to parties participating in “protected” industrial action (also
referred to as a “procedural” strike or lockout). One must distinguish between the proce-
dure that is generally applicable and deviations in respect of specific issues and circum-
stances. The general procedure may be illustrated as follows:
PROCEDURE FOR PROTECTED INDUSTRIAL ACTION
DISPUTE
STEP 1 Referral to council or CCMA
STEP 2 Conciliation
1
(certificate of non-resolution is issued)
STEP 3 Union/employer to give other party 48

hours’ written notice before commence-
ment of strike or lockout (if the State is
the employer 7 days’ notice is required)
STEP 4 Protected strike/lockout commences

after expiry of notice period
In certain circumstances a strike or lockout is protected even though the prescribed proce-
dures have not been followed. In other instances a “special” procedure is required:
• if the issue in dispute concerns a refusal to bargain an advisory arbitration award must be
issued by the conciliator before the written notice of the commencement of industrial
action may be given;
• if the strike is in response to an unprocedural lockout, the strike will be a protected
strike even though it does not comply with the general procedures;
• if the lockout is in response to an unprocedural strike, the lockout will be a protected
lockout even though it does not comply with the general procedures;
• if the parties to the dispute are members of a bargaining or a statutory council and that
council has dealt with the dispute in accordance with its constitution, the strike or lock-
out is protected although it does not comply with the general procedures;
• if there is a collective agreement containing a procedure for strikes and lockouts and the
strike or lockout conforms with the procedure in the agreement, it is protected although
it does not comply with the general procedures;
• where the employer has unilaterally amended conditions of employment or intends to do so the
employees or trade union may, in the referral for conciliation, request the employer not
to unilaterally implement the change or, if the employer has already implemented the
change unilaterally, to restore the status quo. If the employer fails to comply with this re-
quest within 48 hours of the referral having been delivered to it, the employees may
strike and the strike is protected although it does not comply with the general procedures.
The amendments to the LRA that took effect on 1 August 2002 introduced a controversial
provision into South African Labour Law, namely the right to strike over retrenchments. In
instances where section 189A is applicable (‘major or large scale retrenchments’) the
employees or their union may elect between strike action or adjudication by the Labour
Court if they wish to challenge the reason for the dismissal. If a facilitator has been appointed
to facilitate the consultation process between the employer and the other consulting party,
________________________
1 If the dispute is about a refusal to bargain, an advisory award must also be issued before the notice to
strike is given (s 64(2)). If picketing in support of the strike is contemplated, the conciliating commis-
sioner must try to secure an agreement between the disputing parties to establish picketing rules or, if
the parties cannot agree, the commissioner must determine picketing rules and issue such rules at the
same time as the certificate of non-resolution (s 69(4)–(6C)) – see par 15.7.2 below.
there is no need to refer the dispute over the substantive fairness of the dismissals to con-
ciliation. Once the employer has given notice of termination of the employees’ contracts of
employment and 60 days have lapsed since the section 189(3) notice was issued, the em-
ployees or their union may give notice to strike or may refer the dispute to the Labour
Court. Once they have elected one option, the other falls away.
Where a facilitator has not been appointed, the dispute must be referred to conciliation
and if conciliation fails, notice of strike action may be given or the dispute may be referred
to the Labour Court.
The option of strike action is not available where only procedural aspects of the dismis-
sals are being challenged. Refer to paragraph 17.8 (“Dismissal for operational require-
ments”) for a detailed exposition of retrenchments and strikes in the context of major
retrenchments.
The primacy given to collective bargaining is evident from the instances referred to
above: if a collective agreement regulates industrial action, the procedure prescribed by
that agreement takes precedence over the statutory procedures. Here, as elsewhere in the
LRA, the statutory provisions can be regarded as a default option which becomes operative
when the parties have not themselves regulated an aspect of their relationship by way of a
collective agreement.
15.6 Consequences of a strike (s 67)

If the procedures required by the LRA have been followed in calling for a strike, the strike
is a “protected strike”.
• Employees may not be dismissed for striking.

• Involvement in a protected strike does not constitute a delict or a
breach of contract (except if an act is an offence).
• The employer is not obliged to remunerate strikers, unless remu-
neration includes payment in kind (accommodation and food) and
the workers request such payment.
• Employees may be dismissed for misconduct or because of the
employer’s operational requirements during a strike.
• Civil legal proceedings may not be instituted against a person for
his involvement in a protected strike (except if the conduct consti-
tutes an offence).
• Failure by a union to conduct a ballot (if so required in its constitu-
tion) may not give rise to litigation which will affect the legality or
protection of a strike.
PROTECTED
STRIKES • Some limitations apply in respect of the employer’s ability to
employ replacement workers (scab labour):
– in the case of a protected strike in an undertaking the whole or
part of which has been designated a maintenance service an
employer may not employ replacement labour to continue or
maintain production (s 76(1)(a));
– employers who embark on an offensive lockout (i.e. a lockout
that is not in response to a strike) may not employ replacement
labour to do the work of the locked-out employees irrespective
of whether the lockout is protected or unprotected
(s 76(1)(b));
– dismissing an employee for refusing to do the work of a co-em-
ployee who is participating in a protected strike or who has
been locked out is automatically unfair (s 187(1)(b)).
• The Labour Court may interdict the strike.

• The Labour Court may award just and equitable compensation
for any loss attributable to the strike, having regard to a number
of considerations (s 68(1)(b)):
– whether attempts were made to comply with the strike laws
and the extent of those attempts;
– whether the strike or lockout was premeditated;
– whether the strike or lockout was in response to unjustified
UNPROTECTED conduct by another party to the dispute;
OR – whether there was compliance with a Labour Court order or
PROHIBITED interdict restraining any person from participating in indus-
STRIKES trial action;
– the interests of orderly collective bargaining;
– the duration of the strike or lockout;
– the financial position of the employer, trade union or em-
ployees.
• Involvement in an unprotected or prohibited strike may consti-
tute a fair reason for dismissal, provided that a fair procedure is
followed.
• In the case of a prohibited or unprotected strike the Labour
Court has exclusive jurisdiction.
In SA Transport and Allied Workers Union v Garvis & Others [2011] 4 All SA 475 (SCA) the
Supreme Court of Appeal held that section 11 of the Regulation of Gatherings Act 205 of
1993 creates a statutory liability on the part of a trade union under whose auspices a gather-
ing or demonstration (protest march) is held. Should the gathering degenerate into a riot
causing damage to others, the union will be held liable for riot damages, unless it can prove
that the act or omission complained of did not fall within the objectives of the gathering,
that it was not reasonably foreseeable and that the union had taken all reasonable steps to
prevent the act or omission.
15.7 Other forms of industrial action

The LRA of 1995 specifically provides for secondary strikes, picketing and socio-economic
protest action.
15.7.1 Secondary strikes (s 66)

Sometimes employees wish to strike in solidarity with and in support of employees working
for another employer, thereby strengthening the hand of the latter group of employees.
Such a “support strike” is referred to as a “secondary strike” and hence the associated terms
“secondary strikers” and “secondary employer”. To distinguish this type of action from what
is ordinarily understood by the term “strike”, we refer in this context to the employees who
originally embarked on strike action against their employer as the “primary strikers” and
correspondingly use the terms “primary strike” and “primary employer”.
The distinguishing feature is that, in the case of the secondary strike, the strikers do not
have a dispute with their own employer. Their industrial action is not aimed at forcing
concessions from their own employer; it is to make life more difficult for the primary
employer. In this situation one may feel justifiably sympathetic towards the secondary
employer, hence the legislature deemed it necessary to limit the scope of protected second-
ary strikes.
The LRA of 1995 defines a secondary strike as “a strike, or conduct in contemplation or

furtherance of a strike, that is in support of a strike by other employees against their em-
ployer but does not include a strike in pursuit of a demand and referred to a council if the
striking employees, employed within the registered scope of that council, have a material
interest in that demand” (s 66(1)).
From this definition it appears that a secondary or sympathy strike must firstly conform
with the definition of a strike and, secondly, that should employees embark on industrial
action in support of the employees of another employer who are already on strike, such a
strike will be regarded as a primary strike (and not a secondary strike) if two conditions are
met: (a) both employers fall within the registered scope of the same council; and (b) the
“secondary” strikers have a material interest in the demand that have been referred to that
council by the parties involved in the primary strike.
A secondary strike will qualify as a protected strike and secondary

strikers may not be dismissed provided that:
• the primary strike is a protected strike;
• the secondary strikers gave their own employer at least 7 days’
written notice (14 days if the strike is over dismissals for opera-
PROTECTED tional reasons) prior to the commencement of the secondary
SECONDARY strike; and
STRIKES • the harm caused to the secondary employer is reasonable in
relation to the possible effect that the secondary strike will have
on the business of the primary employer. One could call this a
sort of “proportionality test”: the nature and extent of the sec-
ondary industrial action should not be more harmful to the
secondary employer than what is required to make an effective
impact on the primary employer’s business.
A secondary employer may apply to the Labour Court for an interdict limiting or prohibit-
ing the secondary strike on the basis that the nature and extent of the secondary strike will
cause disproportionate harm to its business in relation to the likely effect the secondary
strike will have on the primary employer. Notice of 48 hours to the union is required before
such an application is brought to Court or, where the union has given ten days’ notice of a
proposed strike, then five days’ notice is required. If, for example, the secondary strike
takes the form of a full-blown work stoppage, the Labour Court may find that this action
damages the secondary employer more than is necessary for the damaging impact that can
be made on the primary employer by, say, a limited picket staged by the secondary strikers
outside the premises of the primary employer. The trade union may request an urgent
investigation by the CCMA to determine whether the employer’s claim is justified and the
Labour Court may refuse to grant the interdict before considering the outcome of such an
investigation.
15.7.2 Picketing (s 69)

A picket may be defined as a public expression by employees of their grievances in order to
make the grievances known to the general public and other relevant constituencies and to
elicit support for their cause. It typically involves some form of public protest directed at the
employer and in close vicinity of or on the employer’s premises to dissuade the general
public and suppliers from normal business dealings with the targeted employer and to
persuade other employees to stop working and to join the picket.
The right to picket is a protected fundamental right in terms of the Constitution and is
regulated in section 69 of the LRA.
Picketing qualifies as a form of protected industrial action, in other words the picketers
may not be dismissed, provided that the statutory requirements have been complied with.
Workers who picket enjoy protection, provided that:

• they are members of a registered trade union;
• the trade union has authorised the picket;
• the picket amounts to a peaceful demonstration;
• the picket is in support of a protected strike or in opposition
PROTECTED to any lockout;
PICKETING
• the picket takes place in a public place outside the employer’s
premises or, with the employer’s permission (which may not
be unreasonably withheld), inside the employer’s premises;
• the agreed-upon picketing rules (or, in the absence of such
an agreement, the picketing rules established by the CCMA)
are followed.
When a picket is planned the employer and the union would normally negotiate and con-
clude a collective agreement to regulate the picket. They would typically include in such an
agreement the place and times for the picket.
The amendments to the LRA that took effect on 1 January 2019 make it compulsory to
have picketing rules in place. In terms of the amended section 69 no picket may take place
unless the employer and the union have concluded a collective agreement to establish
picketing rules or, in the absence of such an agreement, the conciliating commissioner has
established rules and issued them together with the certificate of non-resolution (s 69(6A)
& (6C)).
The conventional scenario is that a union refers a dispute of interest for conciliation with
the intention to strike if the dispute is not resolved. Prior to the amendments the dispute
would have been conciliated and if not resolved, a certificate would have been issued, the
union would have given notice and the strike followed. Now the disputing parties are
obliged to conclude an agreement on picketing rules, either before or at the time of the
referral of the dispute or, in the absence of such an agreement, the commissioner must
during conciliation endeavour to secure an agreement between the parties or determine
picketing rules. In determining picketing rules, the commissioner must have regard to the
2
Code of Good Practice.
In two instances a union may bring an urgent application for picketing rules: if the dis-
pute concerns the unilateral amendment of employment conditions and the employer has
failed to restore the status quo within 48 hours and where the employer gives notice or
commences with an unprotected lockout (s 69(6B)).
Disputes concerning pickets are resolved by way of CCMA conciliation and Labour Court
adjudication. Any person who alleges that the right to picket is being undermined, that a
collective agreement on picketing rules has been breached or that the rules determined by
the conciliator have been breached may refer a dispute to the CCMA (not a bargaining
council) for conciliation. If the dispute remains unresolved it may be referred to the
Labour Court (s 69(8)–(11)). The Labour Court may order compliance with the picketing
rules, vary the rules or suspend the picket (s 69(12)).
15.7.3 Protest action to promote or defend socio-economic interests (s 77)

What the LRA of 1995 refers to as “protest action” was in the past known as mass “stay-
aways”, for example, stay-aways called by COSATU to protest against amendments to the
LRA.
________________________
2 The first “Code of Good Practice on Picketing” was issued in 1998 (GN 675 of 15 May 1998, in GG
18887). This Code was replaced by the “Code of Good Practice: Collective Bargaining, Industrial Action
and Picketing”, R 1396, GG 42121 of 19 December 2018 and the Picketing Regulations, GNR.1393 of
19 December 2018, GG No. 42121.
What distinguishes permissible from impermissible protest action is the purpose for
which employees embark on the action. The pursuit of purely political purposes will not
constitute protest action as contemplated by section 77 of the LRA. The protest action must
be aimed at socio-economic issues and interest.
The LRA defines protest action as the “partial or complete concerted refusal to work, or
the retardation or obstruction of work, for the purpose of promoting or defending the
socio-economic interests of workers, but not for a purpose referred to in the definition of
strike” (s 213). Thus, the purpose of protest action must be limited to the promotion or
defence of the socio-economic interest of employees. It does not include action aimed at
remedying a grievance or resolving a dispute about a matter of mutual interest between an
employer and employees.
Central to this definition is the concept “socio-economic” interests, which the LRA does
not define. The connection between the reason for the protest action and the employees’
socio-economic interest will presumably have to be reasonably clear and obvious. The more
overtly political the aims of the action are, the greater will be the presumption that the
action is impermissible and vice versa.
For employees to be protected against dismissal the following

requirements have to be met:
• employees must not be engaged in essential or maintenance
services;
• the protest action must be called or authorised by a regis-
PROTECTED tered trade union or federation;
PROTEST • NEDLAC must be given notice of the intention to embark
ACTION on protest action, including the reasons for and nature of
the action;
• the matter giving rise to the protest action must have been
considered by NEDLAC or some other appropriate forum;
• the union or federation must give NEDLAC at least 14 days’
notice before it proceeds with the action; and
• the employees must not act in breach or contempt of an
order of the Labour Court relating to the protest action.
The Labour Court has exclusive jurisdiction to interdict unprotected protest action or grant
a declaratory order in respect of such action. .
15.8 Determining the nature and status of industrial action

It has already been mentioned that industrial action can be classified into strikes, secondary
strikes, picketing and protest action. After having ascertained that the industrial action falls
within the ambit of one of these categories, it still remains to be determined whether the
conduct of the employees conforms with the procedural requirements of the LRA. There-
fore, in order to determine whether employees enjoy protection against dismissal, one first
has to determine whether the nature of their conduct was such that it can be brought
under one of the modalities of industrial action. Once this has been established, one has to
ascertain whether there is compliance with the procedural requirements laid down by the
LRA. For example, industrial action which does not amount to a “strike”, as defined, cannot
be a “protected strike” and hence employees participating in such action will not be pro-
tected. Even if their conduct constitutes a “strike”, as defined, one still has to determine
whether it qualifies as a “protected strike” before it may be concluded that the employees
are protected. This two-stage enquiry may be illustrated as follows:
STAGE 1 STAGE 2
Determine nature of action Status
Does the action fall within the Did employees com- Yes – protected
definition of a strike, secondary If yes ply with prescribed No – unprotected
strike, picket or protest action? procedures?
Determine with reference to the

• nature of the action
• aims of the action
Only if the answers to the questions in both stages of the enquiry are in the affirmative will
the employees enjoy protection. The following guidelines are provided to assist in the
determination of the action:
Conduct Aims of conduct

STRIKE Employees’ action is directed To resolve disputes about matters of
at the disruption of their own mutual interest between employer
employer’s operations. and employees or to remedy a griev-
ance.
SECONDARY Employees’ action is directed To exert pressure on the primary em-
STRIKE at the disruption of another ployer (whose employees are on a pro-
employer’s operations. tected strike).
PICKETING Peaceful public demonstration To make grievances publicly known, to
by employees against their elicit external support and to urge
own employer in support of a other workers to join the picket line.
protected strike or in opposi-
tion of a lockout.
PROTEST It is not aimed at any particu- To bring pressure to bear upon a non-
ACTION lar employer, but more often employer agency (typically a govern-
than not against government mental authority) to do or not to do
in pursuit of socio-economic something that will impact on the
interests. socio-economic interests of employ-
ees.
Once it has been established that the action is a strike, it must be determined whether the
prescribed procedures have been complied with. Only if this has been done are the employ-
ees protected against dismissal.
This does not mean that an employer may dismiss unprotected strikers with impunity.
The employer must still act in accordance with the precepts of fairness as enunciated in the
LRA. When employees embark on unprotected action the employer is required to contact
and meet with the union. The purpose of this meeting is to convince the union to intervene
and get the employees to return to work. If the union is unsuccessful in getting the workers
to return, the employer must issue an ultimatum. The ultimatum must include a date and
time for the employees to resume duty and give a clear indication of the consequences
should they fail to return at the specified time, such as that disciplinary action will be insti-
tuted which may lead to dismissal. It is important that the ultimatum reach all the strikers.
A reasonable time must be allowed for workers to reflect on the ultimatum and to return to
work. If they do not resume duties it is advisable that the employer repeat the ultimatum,
obviously with a new date and time for their return. If the employees persist in their strike
the employer can issue letters of suspension and notices to attend a disciplinary hearing. A
hearing must be conducted – it can be a collective hearing or individual hearings – and, if
the circumstances warrant dismissal, the employees may be dismissed. It is interesting to

note that, although section 68 permits the dismissal of unprotected strikers, they cannot be
dismissed if they heed the ultimatum and return to work, although other disciplinary action
may still be possible.
Prominent judgments in this regard include Modise & Others v Steve’s Spar Blackheath
[2002] 5 BLLR 496 (LAC) and NUM & Others v Billard Contractors CC & Another (2006) 27
ILJ 1686 (LC).
It is important to have regard to item 6 of the Code of Good Practice: Dismissal (Sched-
ule 8):
6. Dismissals and industrial action
(1) Participation in a strike that does not comply with the provisions of chapter IV is miscon-
duct. However, like any other act of misconduct, it does not always deserve dismissal. The sub-
stantive fairness of dismissal in these circumstances must be determined in the light of the facts
of the case, including –
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.
(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union
official to discuss the course of action it intends to adopt. The employer should issue an ultima-
tum in clear and unambiguous terms that should state what is required of the employees and
what sanction will be imposed if they do not comply with the ultimatum. The employees should
be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with
it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the
employees in question, the employer may dispense with them.
15.9 Lock-outs
A lock-out is the employer’s economic weapon during the collective bargaining process to
compel employees to accept its offer or proposal.
Section 213 of the LRA defines a lock-out as follows:
lock-out means the exclusion by an employer of employees from the employer’s workplace, for
the purpose of compelling the employees to accept a demand in respect of any matter of mutual
interest between employer and employee, whether or not the employer breaches those employ-
ees’ contracts of employment in the course of or for the purpose of that exclusion.
A lock-out is therefore the exclusion of employees from the workplace. A lock-out can take
no other form, as was the case under the 1956 Act. Under the 1956 Act it was, for example,
possible for an employer to discontinue its business, totally or partially, or to dismiss em-
ployees (the so-called dismissal lock-out) in an attempt to compel them to accept the
employer’s proposals. These other forms of lock-outs have been outlawed in the 1995 LRA
and indeed, a dismissal lock-out is declared an automatically unfair dismissal in section 187
of the LRA of 1995.
The definition of a lock-out implies two elements: (a) an act by the employer (the exclu-
sion of employees); (b) with the specific purpose of persuading the employees to accept the
proposal of the employer. In its simplest form a lock-out is typically where the employer
puts a final proposal of a wage increase on the table at the point when wage negotiations
deadlock and tells the employees and their union that the employees will be excluded from
the workplace until they accept that final proposal. In such a case the employer will close all
entrances and not allow any employee to enter the workplace or to perform any work.
A lock-out can be an offensive lock-out or a defensive lock-out. An offensive lock-out is
industrial action taken by the employer before the union and its members embark on some
action. A defensive lock-out is one in response to the union’s strike action.
If an offensive lock-out conforms with the procedural requirements contained in section
64 of the LRA it will withstand any challenge in the Labour Court. In other words, the
employer who intends to embark on lock-out action must refer the dispute to the CCMA or
a bargaining council, conciliation must be conducted, a certificate of non-resolution must
be issued and the employer must give notice (48 hours or seven days) of the lock-out –
similar to a union embarking on protected strike action. If an employer locks out employ-
ees in response to a protected strike it is not necessary for the employer to follow the
section 64 procedure because the union has already followed that procedure for its strike
action. It is merely necessary for the employer to give notice (48 hours or seven days)
before the lock-out commences.
The consequences of a protected and an unprotected lock-out respectively are similar to
the consequences that follow upon a protected and unprotected strike (ss 64, 65, 67 & 68).
Questions
Question 1
List the elements of
1.1 a strike; (4)
1.2 a lock-out. (2)
Question 2
Discuss the requirements for a protected strike in terms of section 64(1) of the LRA. (10)
Question 3
Discuss the legal consequences of protected and unprotected strikes respectively in terms of
sections 67 and 68 of the Labour Relations Act. (20)
Question 4
Discuss the circumstances under which an employer may lawfully dismiss employees who
are participating in a protected strike and the manner in which these dismissals have to be
handled. (15)
Hint: See s 67(5) of the LRA and item 6 of Schedule 8 (the Code of Good Practice: Dis-
missal).
Question 5
ZYX CC is a small fresh produce retailer. It manages to compete with the large retail stores
by staying open seven days a week from 07:00 to 20:00. Although ZYX and its employees
have not formally agreed that overtime should be worked, all the employees have worked
overtime on a regular basis. During recent wage negotiations ZYX was informed by all its
employees that they were no longer prepared to work overtime unless they were given a
12% increase. They indeed stopped working overtime, as a result of which ZYX was rapidly
losing business and no longer able to compete with the chain stores. ZYX wants to know
from you if it can dismiss its employees for striking. (10)
Hint: This ground for dismissal amounts to termination for operational requirements of the
employer.
Question 6
6.1 Is it possible for the members of an unregistered trade union to go on a protected
strike? Explain. (4)
6.2 Can employees who do not belong to a trade union go on a protected strike?
Explain. (4)
Question 7
Suppose the employees of ABC Company go out on strike, demanding that the local au-
thority should institute a public transport service in the area where they live as they find it
difficult to get to and from work.
7.1 Does this constitute a strike? (5)
7.2 Suppose that, instead of directing their demand at the local authority, the strikers
demand that their employer should enter into negotiations with the local authority
about a public transport service. Would this make a difference to your answer? (5)
Question 8
The employees of DAR Company embark on a protected strike in pursuit of their wage
demands. The employer counters the strike by (a) offering bonuses to non-striking employ-
ees to work additional hours and to perform the tasks of the striking employees and
(b) adopting a policy of withholding annual bonuses from striking employees at the rate of
5% per day of strike action. Are these legitimate employer tactics that will survive a chal-
lenge in the Labour Court? (10)
Hint: See s 5(3) of the LRA; NUM & Others v Namakwa Sands & Others [2008] 7 BLLR 675
(LC); South African Freight & Dock Workers Union v Safcor Freight (Pty) Ltd (2011) 32 ILJ 415
(LC).
Question 9
The refuse removal services of a local authority that has not been designated an essential
service by the ESC go on strike in accordance with the LRA. After three weeks typhoid fever
breaks out in the area. Medical authorities are of the opinion that this alarming develop-
ment is a direct consequence of the fact that refuse is not being removed and processed.
Given this situation, answer the following questions:
9.1 May the local authority apply to the ESC to have the refuse removal service designated
an essential service and what effect would this have on the strike in progress? (5)
9.2 May the local authority employ replacement labour to do the work of the strikers? (3)
9.3 May the local authority dismiss non-striking employees from the roads department
who refuse to assist with the removal of the refuse which has accumulated during the
strike? (3)
9.4 Assuming that there was no strike and further assuming that the local authority
applies to the ESC to have the refuse removal designated as an essential service,
explain the process that the ESC must follow in designating this service as an essential
service. (6)
Question 10
Employees and their employer deadlock on the employer’s final offer during wage negotia-
tions. The union refers the dispute to the appropriate bargaining council. Conciliation fails
to resolve the dispute and a certificate of non-resolution is issued. The employer then gives
the trade union 48 hours’ notice of its intention to dismiss those employees who do not
accept the employer’s final offer. True to its word the employer dismisses the recalcitrant
employees after the expiry of the deadline set for acceptance of the final offer. Discuss the
legal position of the dismissed employees and the remedies, if any, at their disposal. (15)
Hint: See s 187(1)(c) of the LRA; NUMSA & Others v Zeuna-Starker Bop (Pty) Ltd [2003] 1
BLLR 72 (LC); Pedzinski v Andisa Securities (Pty) Ltd [2006] 2 BLLR 184 (LC); NUMSA &
Others v Aveng Trident Steel & Others [2018] 5 BLLR 500 (LC).
Question 11
The ABC group of companies is involved in the entertainment and leisure industry. One of
its companies, ABC Wizardry, does business as a chain of entertainment arcades in Johannes-
burg where mostly children and teenagers come to match their skills against video games
and other devices of electronic wizardry. It employs some 200 weekly paid employees, 80 of
whom are members of the Mario Workers Union. The trade union and the employer fail to
resolve a wage dispute and consequently the trade union calls a strike in compliance with
the LRA. The strike of the employees at ABC Wizardry is not successful as the company
manages to operate by employing school children to do the work of the strikers. The trade
union, therefore, considers further strategies of pressurising the company. One of these is
to get the employees of DEF Company, a subsidiary company, to go on strike. The subsid-
iary company provides a maintenance service to the ABC Wizardry. As maintenance is
required daily at the arcades the trade union feels that this strategy will cause severe disrup-
tion of ABC Wizardry’s operations and force the company to reach an agreement. The
workers of DEF Company duly embark on a secondary strike, causing considerable harm to
their own employer (the secondary employer). DEF Company, who experienced financial
difficulties even before the secondary strike, is in a real danger of financial ruin because of
the strike and approaches you for advice. Write a legal opinion in which you set out the
legal position, the arguments that may be used by the employer in support of any appli-
cation for relief that he may seek, as well as the type of arguments the trade union may use
in opposing the application. (20)
Hint: See CWIU & Others v Plascon Decorative (Inland) (Pty) Ltd [1998] 12 BLLR 1191 (LAC);
Samancor Ltd v NUMSA & Others [1999] 11 BLLR 1202 (LC); Billiton Aluminium SA Ltd v
NUMSA & Others [2002] 1 BLLR 38 (LC); FAWU v Earlybird Farm (Pty) Ltd [2003] 1 BLLR 20
(LC); Equity Aviation Services (Pty) Ltd v SATAWU & Others [2009] 10 BLLR 933 (LAC).
Question 12
There was a strike at a business dealing in perishable foodstuffs. The parties failed to reach
a wage agreement as the employer was unable to meet the wage demands. The employees
started to strike without notice to the employer and after they had unloaded the frozen
foodstuffs from the cold storage for the day’s deliveries, thereby intending to cause the
employer the maximum financial harm. The employer twice issued ultimatums for the
employees to return to work. The employer contacted the union, but the union official
refused to intervene. About two hours after the commencement of the strike the strikers
were dismissed. During the course of the day the dismissed strikers jeeringly rejected
numerous offers to negotiate. They also scoffed at suggestions that they should attend
disciplinary hearings to consider their conduct. Throughout the day the employer was
willing to reinstate the dismissed strikers. The next day the union demanded that all the
dismissed strikers be reinstated unconditionally. The employer refused to do so, but said
that all employees who applied for jobs would be re-employed. Those who availed them-
selves of this offer were in fact re-employed. Those who declined the offer took the employ-
er to the Labour Court. At the same time the employer instituted an action in the Labour
Court against the trade union, claiming compensation for the loss suffered by the employer
due to the action of the strikers. Answer the following questions. In your answers distin-
guish between the situation where it is a protected strike and an unprotected strike:
12.1 Will the employees be successful in their court application for reinstatement? (8)
12.2 Will the employer be successful in his claim for damages? (8)
Hint: See ss 67 & 68 (especially s 68(1)(b)) of the LRA; Swissport (SA) (Pty) Ltd v SA Transport
& Allied Workers Union & Others (2011) 32 ILJ 1256 (LC).
Question 13
During the course of a protected strike some strikers vandalise company property. A shop
steward also issues a press release in which he accuses the CEO of the company of embez-
zling the employees’ provident fund contributions. As a consequence of the strike the
company loses a lucrative contract. The CEO approaches you for advice on how to go about
the following:
13.1 suing the union and/or the workers for damage to company property, economic harm
and defamation; (15)
Hint: See SATAWU & Another v Garvas & Others (City of Cape Town as Intervening Party
and Freedom of Expression Institute as amicus curiae) [2012] 10 BLLR 959 (CC).
13.2 dismissing without a hearing those employees who damaged company property (these
individuals are easily identifiable from a video recording made during the strike). (5)
Question 14
Pro Roof Cape (Pty) Ltd underpaid its employees and did not pay annual leave bonuses
because of financial difficulties. When the night-shift employees found out that they were
not going to be paid their bonuses, they refused to continue working. When the day-shift
employees arrived for duty, they joined their colleagues in refusing to work until the bo-
nuses were paid. The employer issued an ultimatum for them to return to work. When the
employees persisted in their refusal to work they were issued with notices terminating their
employment.
14.1 Does the employees’ refusal to work constitute a strike and, if it does, is the strike
protected or unprotected? (5)
14.2 Can the employer dismiss the employees in the circumstances? (2)
14.3 Assume that the employees can be dismissed. Would you consider the manner in
which the employer dismissed them procedurally fair? Explain. (10)
Hint: See item 6 of the Code of Good Practice; Modise & Others v Steve’s Spar Black-
heath [2002] 5 BLLR 496 (LAC); NUM & Others v Billard Contractors CC & Another
(2006) 27 ILJ 1686 (LC).
Question 15
Peter, Sam and Lebo were among a number of employees that Nicholas, the employer, dis-
missed for misconduct after a protected strike, characterised by intimidation and widespread
violence including shooting and the murder of a non-striking employee. The trade union
the employees belonged to did nothing to intervene to restore the peace. Nicholas claimed
that the employees had breached the picketing rules. A disciplinary hearing was subsequent-
ly convened outside Nicholas’s premises. Only a handful of employees attended the hear-
ing. They were dismissed. The employees not in attendance were dismissed in their
absence.
15.1 Assume that when the dispute was initially referred to conciliation (before the strike
commenced) Nicholas and the union had not concluded an agreement on picketing
rules. Discuss the requirements pertaining to picketing rules. (8)
Hint: See s 69 of the LRA.
15.2 Assume picketing rules were in place at the time the strike commenced. What can
Nicholas do to have his allegation of a breach of the picketing rules be determined? (4)
15.3 Peter, Sam and Lebo believe that their dismissals were substantively and procedurally
unfair. They claim that the strike was peaceful and submit that they did not attend the
disciplinary hearing because they could not afford transport to venue. Decide whether
their dismissals were fair. (10)
Hint: See Kunene & Others v Dunlop Belting Products (Pty) Ltd (2011) 20 CCMA 9.4.2.
Appendix 1
GNR.1397 of 19 December 2018: Guidelines issued in terms of section 95 (9)

(Government Gazette No. 42121)
GUIDELINES ON BALLOTING FOR STRIKES OR LOCKOUTS ISSUED IN TERMS OF

SECTION 95 (9) OF THE LRA
1. These guidelines are published in terms of section 95 (9) of the Labour Relations Act (Act 6
of 1995) (“LRA”).
2. In terms of section 95 (5) (q) of the LRA, the constitution of every trade union or employers’
organisation must provide that trade union or employers’ organisation, before calling a
strike or lock-out, must conduct a ballot of members in respect of whom it intends to call the
strike or lock-out.
3. Section 95 (5) (p) provides that a member of a trade union or employers’ organisation may
not be disciplined or have their membership terminated for a failure or refusal to participate
in a strike or lock-out if no ballot was held or, if a ballot was held, a majority of members did
not vote in favour of a strike or lock-out.
4. Section 95 (9) provides that a ballot includes any system of voting by the members of a trade
union or employers’ organisation that is recorded and is in secret.
5. A trade union that has obtained organisational rights in terms of section 12 of the LRA is
entitled to conduct a ballot of its members at the employers’ premises, subject to such condi-
tions as time and place that are reasonable and necessary to safe guard life or property or to
prevent undue disruption of work in terms of section 19 of the LRA. Trade unions that are
parties to bargaining councils in respect of all workplaces within the registered scope of the
Council have this right, regardless of their level of representativeness within a particular
workplace.
6. A trade union that does not have the right of access to a workplace in terms of section 12 of
the LRA or a collective agreement may nevertheless request an employer to permit a ballot
on its premises.
7. Unless stipulated in a collective agreement, there is no requirement for a trade union to
obtain the consent of the employer to hold a ballot.
8. A ballot must be conducted in accordance with the provisions of this Act and the constitution
of the trade union or employers’ organisation.
9. The following are indicative of the procedures that should be followed when conducting a
secret ballot –
Notice
9.1. Reasonable notice must be given to members of the holding of a ballot. Notice may be
given to employees by direct communication, including emails or SMSes, or by the dis-
play of notices at the workplace and at trade union offices. While there is no fixed
standard, a period of three days would generally be considered to be reasonable notice.
9.2. The notice must specify the time and the place of the ballot.
Ballot papers
9.3. The question that is the subject of the ballot must be clearly phrased, and must be
consistent with the terms of the dispute referral.
9.4. Ballot papers must be prepared in accordance with any applicable union or employer
organisation’s Constitutional provisions.
9.5. Ballots must not contain any information that would make it possible to identify voters.
Voter’s roll
9.6. A ballot must be conducted in terms of a voters’ roll of those members who are in good
standing in terms of the union’s constitution that the union proposes to call on strike.
The voters’ roll may be derived from the union’s membership records or from the
employer’s records. The voters’ roll identifies which members are entitled to vote and
must be marked to ensure that members vote once only.
9.7. In the case of an electronic ballot conducted by email or SMS, the voters’ roll must
reflect the email address or mobile phone number of the members concerned and must
be scrutinized and conducted by the CCMA or any independent organisations. The
CCMA or any independent organisation must keep the records of balloting for three
months and thereafter submit to the trade union for record keeping.
9.8. In the case of a postal ballot, the voters’ roll must reflect the postal addresses of the
members and the CCMA or any independent organisation must keep the postal ballots
for three months and thereafter submit to the trade union for record keeping
9.9. A trade union may elect to ballot members outside of the bargaining unit in respect of
which it proposes to call a strike or to ballot non-members within the bargaining unit.
However, those ballots must be conducted and recorded separately from the ballot of
members in respect of whom the trade union proposes to call on strike.
Scrutineers and observers
9.10. A union may employ independent scrutineers to conduct or observe the ballot. How-
ever, there is no obligation to do so, unless provided for in a collective agreement or
the trade union’s constitution. In all the ballots there will be a scrutineer.
9.11. There is no requirement on a trade union to permit employer observers at a ballot,
unless s provided for in a recognition or other collective agreement.
(Editorial Note: Wording as per original Government Gazette.)
Balloting and counting
9.12. The union must provide ballot boxes for a secret ballot. Members listed on the voters’
roll must receive a ballot paper and be able to mark it and place it in an unmarked bal-
lot box without their vote being observed by any other person.
9.13. Ballots may be counted at the voting place, at a union office or at another place deter-
mined by the Independent Scrutineer. Where the ballot boxes are transported to
another place, they must be sealed.
Records of ballot
9.14. Records of voting must be retained for a period of three years. These records include
the voters’ rolls, ballots in sealed ballot boxes or other containers and any documents
used to calculate the outcome of the ballot.
9.15. In the case of electronic ballots, appropriate records must be retained.
Transitional provisions
10. Section 19 (1) of the Labour Relations Amendment Act, 2018 requires the Registrar of
Labour Relations, within 180 days of the Act coming into effect, to –
10.1. consult with the national office bearers of trade unions and employers’ organisations
which have constitutions that do not provide for the conducting of a secret ballot
before calling a strike or lockout;
10.2. issue a directive to those trade unions and employers’ organisations as to the period
within which their constitutions must be amended to ensure compliance with the
requirement for conducting a secret ballot.
11. In terms of section 19 (2) of the Labour Relations Amendment Act, 2018, until such time as a
trade union or employers’ organisation complies with the directive to change its constitution,
it must conduct a secret ballot of its members before calling a strike or lockout, as the case
may be.
12. A model clause to achieve compliance with the requirement to hold a secret ballot before
engaging in a strike or lockout is attached as Annexure A.
ANNEXURE ONE
DRAFT CLAUSE FOR TRADE UNION/EMPLOYERS’ ORGANISATION CONSTITUTIONS
ABOUT SECRET BALLOTS IN RESPECT OF STRIKES OR LOCKOUTS
Ballots about a strike/lockout
1 Despite any other provision in this Constitution –
1.1 a strike/lockout may only be called in terms of this Constitution after a secret ballot has
been conducted of those members in respect of whom the strike/lockout is called;
1.2 a member shall not be disciplined or have their membership terminated for failure or
refusal to participate in a strike/lockout if –
1.2.1 a secret ballot was not held about the strike/lockout;
1.2.2 a secret ballot was held, but a majority of the members who voted did not vote
in favour of the strike/lockout.
2 The documentary or electronic record of a ballot about a strike/lockout must be retained for
three years from the date of the ballot.
Appendix 2
GNR.1393 of 19 December 2018: Picketing Regulations

(Government Gazette No. 42121)
ARRANGEMENT OF REGULATIONS
1. Definitions
2. Agreement on Picketing Rules
3 Determining Picketing Rules
4. Binding Nature of the Picketing Rules
5. Distribution of Picketing Rules
DEFAULT PICKETING RULES

Established in terms of section 69 (5) of the Labour Relations Act 66 of 1995 (“the LRA”)
Notes
1. Legal Context
2. Purpose of The Picket
3. Circumstances of Workplace
4. Location of Picket
5. Details of Picket
6. Nature And Conduct of Picket
7. Control of Pickets
8. Employer Conduct
9. Picketing on Employer’s Premises
10. Dispute Resolution
11. Police Involvement
12. Termination
Annexure A
Annexure B
1. Definitions.—In these regulations, unless the context indicates otherwise –
Any word or expression to which a meaning has been assigned in the Labour Relations Act,
1995 (Act 66 of 1995) bears that meaning;
“bargaining council” means the bargaining council with the jurisdiction over the parties to
the dispute;
“certificate of non-resolution” means the certificate contemplated in section 64 (1) (a) (i)
of the Act;
“Code” means any code of good practice published in terms of section 203 of the Act deal-
ing with picketing;
“collective agreement” means any collective agreement that –
(i) regulates picketing; and
(ii) is binding on the trade union or employees party to the dispute;
“conciliator” means in respect of a dispute that may give rise to a protected strike or lock-
out and referred to –
(i) the Commission, a commissioner appointed by it to conciliate the dispute; or
(ii) a bargaining council, a person appointed by it to conciliate the dispute;
“A dispute” means a dispute that may give rise to a protected strike or lockout and which has
been referred to the Commission or a bargaining council in accordance with section 64 (1) (a);
“the Act” means the Labour Relations Act, 1995 (Act 66 of 1995).
2. Agreement on picketing rules.—(1) The Commission or bargaining council must notify
the parties to a dispute that, if the dispute is not resolved, a trade union may not engage in a
picket unless –
(a) there is a collective agreement regulating picketing;
(b) an agreement on picketing rules is reached in the conciliation proceedings; or
(c) picketing rules are determined by the Commission in terms of section 69 (5) of the
Act.
(2) The Commission or bargaining council must in that notice request that the trade
union submit a copy of any collective agreement regulating picketing to the conciliator.
(3) If the appointed conciliator is satisfied that there is no collective agreement that
regulates picketing, the conciliator must, before issuing a certificate of non- resolution, attempt
to secure an agreement between the parties to the dispute on picketing rules using the default
picketing rules as a basis.
3. Determining picketing rules.—(1) If there is no collective agreement and the parties to
the dispute do not agree on picketing rules, the commissioner must determine the rules in
accordance with the default picketing rules and in doing so must take account of –
(a) the particular circumstances of the workplace or other premises where it is in-
tended that the right to picket is to be exercised;
(b) any relevant code of good practice; and
(c) any representations made by the parties during the course of the conciliation
proceedings.
(2) If the parties to the dispute fail to make representations for the purpose of deter-
mining picketing rules or provide the conciliator with the necessary information, the conciliator
may –
(a) in the case of the employer, designate the owner or senior manager of the em-
ployer as the person appointed in terms of clause 8.1 of the default picketing rules;
(b) in the case of the trade union, not determine the picketing rules until the infor-
mation required in respect of the union convener and marshals has been submitted
to the conciliator.
(3) The conciliator must determine the picketing rules and issue them at the same time
as the certificate of non-resolution is issued to them.
4. Binding nature of the picketing rules.—A collective agreement is an agreement con-
templated in section 69 (4) and regulation 2 (3), and picketing rules determined in terms of
section 69 (5) and regulation 3.
5. Distribution of picketing rules.—(1) If there is a collective agreement or an agreement
reached in terms of section 69 (4) of the Act and regulation 2 (3), the agreement must be sub-
mitted by the trade union to –
(a) the responsible officer appointed in terms of section 2 (4) of the Regulation of
Gatherings Act, 1993 (Act 205 of 1993);
(b) the member of the South African Police Services contemplated in terms of section
2 (2) of that Act.
(2) If the conciliator has determined picketing rules in terms of section 69 (5) and regu-
lation 3, the conciliator must in addition to the persons referred to in subregulation (1) give
copies of the picketing rules to the parties to the dispute.
(3) The employer party to the dispute must distribute copies of the picketing rules to –
(a) its appointed representative and the managers on duty during the strike or lockout;
(b) its security personnel or any private security company contracted to protect the
employer’s property and the safety of person on the property; and
(c) place copies of the rules on the notice boards to which employees have access.
(4) The trade union party to the dispute must –

(a) distribute copies of the picketing rules to its convenors and marshals; and
(b) take the necessary steps to ensure that the convenors, marshals and picketers
understand the rules.
DEFAULT PICKETING RULES
1 LEGAL CONTEXT
1.1 These Rules are drafted in accordance with –
1.1.1 Section 17 of the Constitution of the Republic of South Africa, 1996, which
guarantees the right to picket peacefully and unarmed;
1.1.2 Section 69 of the LRA, which regulates the right of members and supporters of a
registered trade union to picket;
1.1.3 The Code of Good Practice on Collective Bargaining, Industrial Action and
Picketing;
1.2 Where these Rules are silent, the relevant provisions of the Constitution, LRA and the
Codes apply.
1.3 The meaning of terms defined in the LRA apply to the use of the terms in these Rules
unless the context indicates otherwise.
2 PURPOSE OF THE PICKET

2.1 These Rules are determined in terms of section 69 (5) of the LRA in the absence of an
agreement between the parties to the dispute on picketing rules in respect of an author-
ised picket –
*
2.1.1 in support of the protected strike commencing/having commenced on (date)
or
*
2.1.2 in opposition to a lock-out by the employer commencing/having commenced on
(date)
or
2.2 in any protected secondary strike involving employers (name and address of the work-
place(s) of those employers).
3 CIRCUMSTANCES OF WORKPLACE
In establishing these Rules, the following circumstances of the workplace or other premises
1
where pickets are intended have been taken into account –
3.1 It is necessary to itemise the particular nature of the circumstances relating to the
nature of employment and the workplace that have been taken into account in formu-
lating these rules.
4 LOCATION OF PICKET
4.1 The picket may only be held at the following places outside the employer’s workplaces –
4.1.1 (details of the place or places within which a picket may be held at the address or
addresses of the employer’s workplace or workplaces described in Annexure A).
________________________
1 See s 69 (5) (a). See also Shoprite Checkers (Pty) Ltd v CCMA & Others (2006) 27 ILJ 2681 (LC) at par. 31:
“The matrix of permissible conduct that evolves ultimately as the picketing rules is a particular permuta-
tion that balances logistics, the nature of the business, the industrial relations history of the enterprise
and the union with the impact of the picket so that the rules are determined not too narrowly or too
broadly to exacerbate industrial conflict or obstruct the substantive resolution of the dispute.”
4.2 The picket may be held at the following places inside the employer’s workplaces if the
employer has agreed to a picket being held in those places –
4.2.1 (details of the agreed place or places inside the employer’s premises described in
Annexure A)
4.3 If the employer has not agreed to the picket being held within its premises, the Com-
missioner may determine that the picket be held within the following places in the
premises if the Commissioner considers the employer’s refusal to permit a picket inside
its premises to be unreasonable –
4.3.1 (details of the place or places inside the employer’s premises described in Annex-
ure A)
4.4 If picketing is to take place within a shopping mall, business complex or business park
in which employers share private or public premises, the Commissioner may, but only
after consultation with all interested parties, determine that the picket be held within
the following places and subject to such terms as the Commissioner considers reason-
able –
4.4.1 (details of the place or places outside the mall, complex or business park
described in Annexure A) and
4.4.2 (details of the place or places inside the mall, complex or business park described
in Annexure A)
5 DETAILS OF PICKET
5.1 Date and duration
5.1.1 Picketing may begin at or after (time) on (date) and may continue until the
settlement of the dispute, subject to clause 5.2.
5.1.2 Picketing may take place between (times) on every working day for the duration
of the strike.
5.1.3 If there is any breach of clauses 4, 5.5 or 6 of these Rules, the trade union must
suspend its picket until it has satisfied the Commissioner that it can exercise con-
trol over its picket.
5.2 Number of pickets –
5.2.1 A maximum of (...) persons may take part in the picket at any given time at each
2
location(s) specified in clause 4 above and set out in Annexure A.
5.2.2 Only members of the trade union and other employees of the employer may take
part in the picket.
6 NATURE AND CONDUCT OF PICKET

6.1 Picketers must at all times conduct themselves in a peaceful, unarmed and lawful
manner and not interfere with the constitutional rights of other persons.
6.2 Subject to clause 6.3, picketers may –
6.2.1 carry placards;
6.2.2 hand out pamphlets;
6.2.3 chant slogans, sing and dance;
6.2.4 be addressed by union officials; and
6.2.5 approach and peacefully seek to persuade clients and customers of the employer,
members of the public, other employees who are not on strike and replacement
workers not to enter the premises and/or to support the strike.
________________________
2 The Commissioner may set different numbers of pickets for particular locations. For example, a Com-
missioner may set 10 pickets at a time outside a shopping mall or business complex but only two pickets
outside the premises of the employer in the mall or complex.
6.3 The Commissioner may limit the activities limited in clause 6.2 in respect of specific
3
locations and detail them in Annexure A.
6.4 Picketers may not –
6.4.1 forcefully prevent clients and customers of the employer, members of the public,
other employees who are not on strike and replacement workers from entering or
leaving the premises of the employer;
6.4.2 commit any action which may be unlawful, such as intimidating, coercing, threat-
ening or assaulting any person or causing damage to any property;
6.4.3 wear masks; or
6.4.4 have any dangerous weapons or inflammable materials in their possession.
6.5 For the purposes of these Rules, dangerous weapons includes the dangerous objects
listed in clause 22 (2) of the Code of Good Practice on Collective Bargaining and Indus-
trial Action.
7 CONTROL OF PICKETS
7.1 The trade union must appoint a member or official as convenor with responsibility to
oversee the picket as well as a person to oversee the picket in the absence of the con-
venor.
7.2 The convenor will at all times during the picket have a copy of these Rules in his posses-
sion for purposes of reference.
7.3 The employer will provide the convenor with the name and contact details, including
mobile number, of the person appointed to represent the employer in matters related
to the picket.
7.4 The trade union will also appoint the following number of marshals to monitor the
picket at each location where it is taking place –
7.4.1 (number of marshals for each of the locations at which the picket is to take place)
7.5 The marshals will –
7.5.1 have the telephone numbers of the convenor and of the person appointed to
oversee the picket in the absence of the convenor;
7.5.2 wear armbands and/or vests to identify themselves as marshals; and
7.5.3 be present from the start to the end of each day of the picket.
7.6 The names and telephone numbers of the convenor and marshals must be set out in
Annexure B.
7.7 Any change to a convenor and marshal must be sent by a text message to the persons
listed in Annexure B.
8 EMPLOYER CONDUCT
8.1 The employer must –
8.1.1 appoint a person to liaise with the convenor and marshals on its behalf to ensure
compliance with this agreement; and
8.1.2 receive communications as and when requested to do so by the union.
8.2 The employer or any person in authority at the workplace or acting on the employer’s
behalf may not –
8.2.1 in any way hinder or obstruct the lawful conduct of the picket;
8.2.2 undermine any employee’s right to participate in the picket or discipline of
threaten to discipline any employee for doing so;
8.2.3 engage in or permit conduct which is provocative or may incite conflict; or
________________________
3 The Commissioner may for example limit the activity of a picket in a shopping mall or business complex
to carrying placards and handing out pamphlets.
8.2.4 carry a weapon of any kind while in contact with the pickets.
8.3 Ensure that any private security company employed by the employer complies with the
requirements relating to such companies under the Code of Good Practice on Collect-
ive Bargaining and Industrial Action.
9 PICKETING ON EMPLOYER’S PREMISES

9.1 If picketing is to take place on the employer’s premises, the employer must provide the
trade union with written confirmation of the health and safety rules to be observed
before, during and after the picket.
9.2 The employer must make the following facilities available before the commencement of
the picket –
9.2.1 toilet facilities to be used by the participants in the picket;
9.2.2 running water to be used by participants for drinking and hygiene purposes;
9.2.3 appropriate shelter within the designated picketing area(s); and
9.2.4 a telephone to be used by the convenor, marshals, shop stewards or other respon-
sible union officials for purposes of ensuring the proper conduct of the picket.
9.3 Participants in a picket on the employer’s premises shall, in addition to the require-
ments set out in paragraph 7 above –
9.3.1 remain within the designated picketing area(s);
9.3.2 observe the health and safety rules and regulations applicable in the workplace;
9.3.3 refrain from causing any damage to property or allowing any damage to be caused;
and
9.3.4 leave the premises and the facilities in the condition in which they found it.
10 DISPUTE RESOLUTION
10.1 Any dispute about the interpretation or application of these Rules or any alleged breach
thereof shall be dealt with in accordance with section 69 (8), (9), (10) and (11) of the
LRA. This does not affect any other right that any person may have in terms of the LRA
or any other law.
10.2 It is recorded that the employer, the union and persons taking part in the picket are
subject to the protections and provisions set out in section 67 of the LRA.
11 POLICE INVOLVEMENT
11.1 These Rules do not affect the right of any person to ask the South African Police Service
or any security organisation responsible for maintaining safety and security at the work-
place to investigate or deal with any unlawful conduct or alleged unlawful conduct.
11.2 If this happens, the employer and the union undertake to cooperate with the police or
security organisation in the performance of their duties and the union undertakes to do
everything possible to ensure that its members and supporters will do the same.
12 TERMINATION
These Rules will remain in effect until the settlement of the dispute, the termination of the
strike, termination of the picket by the union or until it is terminated or reviewed by mutual
agreement, whichever may come first.
ANNEXURE A
DESCRIPTION OF PLACE OR PLACES FOR THE PICKET
Address/es
1.
2.
4
Physical location
3. (number of pickets) (limitation of activity)
4. (number of pickets) (limitation of activity)
ANNEXURE B
NAMES AND DETAILS OF PARTICIPANTS
Commissioner
1. (Name, email address and mobile telephone number)
Convenor
2. (Name, designation of status,5 email address and mobile telephone number)
Employer representative
3. (Name of person appointed in terms of clause 8.1, designation of status, email address and
mobile telephone number)
Marshalls
4. (Name, work number and mobile telephone number)
(Editorial Note: Wording as per original Government Gazette.)
________________________
4 The physical location may be described in words or drawn or both. So, for example the location may be
described as 5 metres from the entrance to the employers premises on XX road and extend no more
than 2 metres onto the pavement – accompanied with a drawing to that effect.
5 Whether a trade union official, shop steward or member. If a shop steward or member, then the
employee’s work number must be included)
Appendix 3
CODE OF GOOD PRACTICE:

COLLECTIVE BARGAINING, INDUSTRIAL ACTION AND PICKETING
(Note to reader: only the relevant portions of the Code are reproduced here.)
PART D
INDUSTRIAL ACTION: STRIKES AND LOCKOUTS
16. Constitutional context.—(1) The right to engage in collective bargaining and the
right of workers and employers to take industrial action is constitutionally protected. The right
to engage in collective bargaining is a right that trade unions, employers and employers’ organ-
isations share. Workers have the right to strike and the Constitutional Court has held that the
right to engage in collective bargaining implicitly recognises the employer’s right to exercise
some economic power, which may include the right to lockout.
(2) Like all rights, the right to engage in collective bargaining (including the recourse
by employers to exercise economic power) and the right to strike may be limited by legislation
provided that the limitation is reasonable and justifiable. The limitations imposed on the right to
strike and lockout seek to make a strike or lockout the last resort or unnecessary because of
other judicial or arbitral remedies or to protect society from strikes in essential services, the
interruption of which may affect the health and safety of the population.
(3) It is in this context that the right to strike and the recourse to lockout must be
understood. Unlike most other rights in the Bill of Rights, the right to strike and the right to
lockout is a right to cause economic harm.
(4) However, prolonged and violent strikes have a serious detrimental effect on the
strikers, the families of the strikers, the small businesses that provide services in the community
to those strikers, the employer, the economy and community.
(5) Workers exercising the right to strike or the right to protest action and employers
exercising the recourse to a lockout must therefore recognise the constitutional rights of others4.
17. Disputes in respect of which industrial action may be exercised
Disputes of right, mutual interest and those involving socio-economic interests
(1) The Act distinguishes between three kinds of dispute: disputes of right; disputes of
mutual interest; and disputes involving the socio-economic interests of workers –
(a) A dispute of right is a dispute that the Act or other employment laws require to be
settled by arbitration or adjudication. An example of a dispute of right is a dispute
________________________
4 Constitutional rights include—

(i) Section 12 (1) ‘Everyone has the right to freedom and security of the person, which includes the
right ... (c) to be free from all forms of violence from either public or private sources.’ This refers
to the right of people not to be threatened with or subjected to violence.
(ii) Section 16 ‘Everyone has the right to freedom of expression ... (that) does not extend to (b) in-
citement of imminent violence; or (c) advocacy of hatred ...’ Refers to the right to express oneself
during industrial action, but not in a manner that incites violence or constitutes hate speech.
(iii) Section 17 ‘Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to
picket and to present petitions.’ This refers to the right of workers to demonstrate and picket in a
peaceful and unarmed manner.
(iv) Section 18 ‘Everyone has the right to freedom of association.’ This refers to the right of a worker
to participate or not to participate in the strike or lockout.
(v) Section 25 ‘No one may be deprived of property except in terms of a law of general application’.
This refers to the right not to be threatened with or subjected to damage of property.
(vi) Section 23 (1) ‘Everyone has the right to fair labour practices.’ Refers to the right not to be
penalised for engaging in a protected strike or lockout.
arising from a contravention of a collective agreement or an employment law such

as unfair dismissal, unfair discrimination, and underpayment of wages. It can be
described as a dispute concerning existing rights.
(b) A dispute of mutual interest on the other hand is a dispute concerning employment
or labour relations that cannot be resolved through enforcing existing rights. It can
be described as a dispute to create new rights. A dispute of mutual interest is the
legitimate scope of a collective bargaining agreement and the matters which may
legitimately form the subject of a protected strike or lockout.
(c) A dispute involving the socio-economic interests of workers, permits protest action
in matters that extend beyond matters that form the subject matter of collective
agreements. These disputes though must be distinguished from purely political
strikes which the Act does not afford any protection.
(2) The distinction between a rights and a mutual interest dispute can be demonstrated
by a few examples –
(a) If an employer pays an employee less than the rate of pay stipulated in a collective
agreement or the amount stipulated in an employment law, a dispute over the
underpayment is a dispute of right that may be referred to the CCMA, a bargaining
council or the Labour Court for adjudication.
(b) A dispute of interest on the other hand is a dispute over a demand that the employ-
ees or employer has no legal right to, such as a demand for an increase in wages or
a change in hours of work. These kinds of dispute can only be resolved by agree-
ment, which may be induced by a threat or the exercise of a strike or lockout.
There are two exceptions - disputes of interest in essential services must be referred
to arbitration; and the parties to a dispute of interest may by agreement refer the
dispute to arbitration. The following are examples of a dispute of interest –
(i) A dispute over what next year’s wages are going to be;
(ii) A dispute over a new collective agreement or the renewal of an expired
agreement;
(iii) A dispute over shorter working hours or higher overtime rates of pay;
(iv) A dispute over the introduction of a new shift system.
(3) The distinction between a dispute of mutual interest and a dispute of interest is im-
portant because as a rule, the Act limits the right to strike to matters of mutual interest. There
are two exceptions. A dispute over organisational rights or a proposed retrenchment in some
circumstances may either be determined, on the one hand by the CCMA (organisational rights)
or the Labour Court (retrenchment disputes) or, on the other hand, by the exercise of the right
to strike. For example, if a registered trade union does not have sufficient or majority represent-
ativeness (depending on the nature of the organisational right), it has no statutory right to those
organisational rights but the Act specifically permits a trade union to strike – i.e. the creation of
a new right, in this case granting a minority trade union an organisational right by collective
agreement rather than by operation of statute.
What disputes may form the subject matter of a strike or lockout
(4) Apart from the two exceptions relating to organisational rights and retrenchment in
certain circumstances, the dispute must be one of mutual interest. Accordingly, rights disputes
(other than the two exceptions) do not constitute matter that can form the subject matter of a
protected strike or lockout.
(5) Not all mutual interest disputes however may form the subject matter of a protected
strike or lockout. The Act limits the right to strike and recourse to lockout in respect of the
following –
(a) In breach of a peace clause in a collective agreement;
(b) If the trade union and employer or employers’ organisation have agreed to refer
the dispute to arbitration;
(c) If the employees, trade union, employer or employers’ organisation make an
unlawful demand. An unlawful demand for example is a demand by workers that an
employer dismiss a fellow employee. That would be unlawful because it would re-
quire the employer to contravene the fair dismissal provisions in the Act, Another
example is the demand by an employer that employees work longer overtime hours
than permitted in the BCEA.
18. Conciliation of mutual interest disputes.—(1) Section 64 (1) of the Act requires all
disputes of mutual interest that may result in a strike or a lockout to be referred to conciliation.
There is one exception - the unilateral change to terms and conditions of employment if an
employee or a trade union gives notice not to introduce the alteration or, if introduced, to
restore the original terms and conditions.
(2) The trade union and employer parties to a mutual interest dispute must attend the
conciliation meetings convened by the CCMA or the bargaining council with jurisdiction.
(3) The primary object of the conciliation is to try to resolve the dispute without resort
to industrial action. The parties must in good faith endeavour to settle the dispute, failing which,
the commissioner or conciliator must propose alternative means to do so, such as arbitration,
including advisory arbitration.
(4) If the parties fail to settle the dispute or agree on an alternative method to resolve it,
a secondary object of conciliation is to –
(a) to record the demands in respect of which the workers, trade union, employer or
employers’ organisation intend to take industrial action;
(b) to agree on the following –
(i) the need for maintenance or minimum services, if necessary;
(ii) the lines of communication between the conciliator (or facilitator if there is
one), the union, the employer and the police; and
(iii) Strike and picketing rules.
19. Ballot of members.—(1) The Act does not require the conduct of a ballot as require-
ment for a protected strike or lockout. Section 67 (7) of the Act states quite explicitly that the
failure by a registered trade union or registered employer organisation to conduct a ballot may
not give rise to any litigation that will affect the legality and the protected status of a strike.
(2) The obligation to ballot flows instead from the constitution of a registered trade
union or employers’ organisation. The constitutional obligation flows from the requirement in
section 95 (5) (p) of the Act that a trade union or employers’ organisation that seeks registration
must provide in its constitution for the conduct of a ballot before the calling of a strike or lock-
out. That ballot must be a secret ballot.
(3) Registered trade unions and employers’ organisations are obliged to comply with
their constitutions even though the failure to do so does not have the consequence of invalidat-
ing the protected status of the strike or lockout.
20. Notice of the commencement of the strike or lockout.—(1) The notice of the com-
mencement of a strike or lockout must be in writing and given at least 48 hours after the issue of
a certificate of outcome or the expiry of thirty days in the case of private employers and seven
days in case of the state as employer.
(2) Since the object of notice is to allow the other party to put its house in order and
limit the negative consequences of industrial action to loss of production on the part of employ-
ers and the loss of income on the part of employees, the parties should agree to a notice period,
notwithstanding the minimum periods set out in the Act, that is of sufficient duration to allow
the employer to shut down its plant or services without damage to property and to allow the
employees to make the necessary arrangements to face a period of no income..
(3) The notice must include –
(a) the date and time when the strike or lockout is to commence;
(b) the demands which the other party is being required to meet, which demands may
not be different to those on which the parties deadlocked.
(4) The notice does not have to include the following information –
(a) Which employees are to go on strike;
(b) In which division of the employer’s workplace the strike is going to be called.
(5) If a strike or lockout does not commence on the date stated in the notice, the trade
union or employers’ organisation should issue a further notice stating the date and time of
commencement if it intends to strike or lockout unless there is an agreement, that should not be
unreasonably withheld, to extend or shorten the notice to allow for further negotiations.
(6) The failure to issue a further notice, or strike or lockout after a notice is issued in
terms of 19 (5) herein, may lead to an inference that the trade union or employers’ organisation
has waived or abandoned its right to strike or lockout.
21. Who may strike.—(1) Any employee, including employees who are not members of
the union calling the strike, may join a protected strike. There are only two exceptions –
(a) Essential service workers or any agreed minimum services within an essential
service;
(b) Maintenance service workers
(2) If a service has been declared an essential service by the Essential Service Committee
in terms of section 71 of the Act, the trade unions in that service and the employers can con-
clude a minimum services agreement on the particular categories within that service and num-
ber of employees to perform that service during the strike. If a minimum services agreement is
not concluded, the Essential Services Committee may determine such minimum services under
section 72 (2) of the Act. Employees within agreed or determined minimum services are not
permitted to strike.
(3) A trade union and employer may enter into a maintenance service agreement in
order to avoid material physical damage to the working area, plant or machinery arising from a
strike. If there is no agreement, the employer may apply to the Essential Services Committee for
a determination. Employees falling within such a determination are not permitted to strike.
Depending on whether the all or a substantial number of employees are prohibited from striking
as a result, the committee may refer the dispute to arbitration.
22. Strikes or lockouts in respect of employees residing on employer premises.—
(1) Employees residing in accommodation provided by their employer are entitled to exercise
their fundamental rights including their freedom of association not only at the workplace but
also in their living quarters5.
(2) During a protected and peaceful strike or lockout, the employer, at the request of
the employee, should not discontinue payment in kind in respect of accommodation, the pro-
vision of food and other basic amenities of life such as the provision of water and heating. The
parties may regulate this by way of a collective agreement as provided for in section 34 (1) (b) of
the Basic Conditions of Employment Act (BCEA) and which may include provisions for the
employer to recover such payment in kind by way of deductions from an employee’s wages after
the industrial action.
(3) The employer may recover the monetary value of the payment in kind made at the
request of the employee during the strike or lockout from the employee in terms of the BCEA
and Act.
(4) Freedom of association in the context of employees residing at their place of work,
means –
(a) the right of an employee to choose either –
(i) to strike or not to strike; or
(ii) to participate or not to participate in a collective decision to resist a lockout;
(b) that every employee must respect the right of other employees –
(i) to strike or not to strike;
(ii) to participate or not to participate in a collective decision to resist a lockout;
(c) to work or not to work during the strike or lockout;
________________________
5 The ILO Workers’ Housing Recommendation 115 of 1961.

(d) the right of every employee not to be interfered with, threatened with or intimi-
dated when entering or exiting the workplace, commuting to and from the work-
place, in their living quarters (if provided by the employer) or their homes or
within their communities.
(5) Every employee must respect the right to freedom of movement in particular –
(a) the right of management to enter and exit its premises;
(b) the right of non-striking workers to enter and exit the workplace and their living
quarters and to use public transport;
(c) the right of third parties to enter and exit the employer’s premises and do business
with the employer;
(d) an employer’s right to continue and maintain production, subject to the restrictions
on replacement labour contained in section 76 of the Act;
(6) All parties must take all reasonable steps to ensure that their employees and mem-
bers comply with (4) and (5) above.
(7) Nothing in this clause restricts a lawful and peaceful picket on the employer’s prem-
ises in accordance with section 69 of the Act and Part E: Picketing.
23. Peace and stability and communication during a strike or a lockout.—(1) In accord-
ance with the guideline that the parties should develop rules regulating peaceful and protected
industrial action, which includes picketing, those rules, depending on the circumstances, may
include the establishment of a peace and stability committee made up of union officials, shop
stewards, employer representatives, the conciliator or facilitator, a person representing the pri-
vate security company and a person appointed by the South African Police Services in accord-
ance with the Accord.
(2) At the very least, the rules should include the following –
(a) The trade union, employer or employers’ organisation should identify persons and
alternates with whom the parties can communicate during a strike or lockout and
provide each other with contact details.
(b) The contact details of the trade union and employer representatives should be
forwarded to the conciliator or facilitator in order that the conciliator or facilitator
is able to re-institute negotiations during the course of the strike or lockout.
(c) The employer should then request the South African Police Services to appoint a
police officer in accordance with the Accord with whom the trade union and em-
ployer representatives can liaise during the currency of the strike and to provide
that person with the contact details of the employer and trade union representa-
tives and those of the conciliator or facilitator.
(d) If there is a significant private security presence, the employer should ensure that a
person with authority in the private security company is identified as a represen-
tative and that that person’s contact details are forwarded to the trade union, the
conciliator or facilitator and the South African Police Services.
PART E
PICKETING
24. Introduction.—(1) This Part of the Code is intended to provide practical guidance on
picketing in support of any protected strike or in opposition to any lockout. It is intended to be a
guide to those who may be contemplating, organising or taking part in a picket and for those
who as employers or employees or members of the general public that may be affected by it.
(2) Section 17 of the Constitution recognises the right to assemble, to demonstrate, to
picket and to present petitions. This constitutional right can only be exercised peacefully and
unarmed. Section 69 of the Act seeks to give effect to this right in respect of a picket in support
of a protected strike or a lockout.
(3) Any person interpreting or applying the Act in respect of any picket must take this
Part of the Code into account. This is the effect of section 203 of the Act. This applies to em-
ployers and their employer organisations, employees and their trade unions, the Commission,
Labour Court, the Labour Appeal Court, private security-services and the South African Police
Services.(include supporters and landlord)
(4) This Part of the Code does not apply to all pickets and demonstrations in which
employees and trade unions may engage. It applies only to pickets held in terms of section 69 of
this Act. That section has four elements –
(a) The picket must be authorised by a registered trade union;
(b) Only members and supporters of the trade union may participate in the picket;
(c) The purpose of the picket must be to peacefully demonstrate in support of any
protected strike or in opposition to any lockout;
(d) The picket may only be held in a public place outside the premises of the employer
or, with the permission of the employer, inside its premises. The permission of the
employer may be overruled by the CCMA, if the permission is unreasonably denied.
The factors to be taken into account to determine whether permission is unreason-
ably denied are set out in clause 29 of this Code.
(5) If the picket complies with these four elements then the ordinary laws regulating the
right of assembly do not apply. These laws include the common law, municipal by-laws and the
Regulation of Gatherings Act, 205 of 1993.
(6) A picket conducted by an unregistered trade union or for purposes other than to
demonstrate in support of a protected strike or a lockout is not protected by section 69 of the
Act. The lawfulness of that picket or demonstration will depend on compliance with the ordinary
laws regulating public gatherings referred to in sub-clause (5).
25. Authorisation.—(1) A picket contemplated in section 69 of the Act must be author-
ised by a registered trade union.
(2) The authorisation must be made in accordance with the trade union’s constitution.
That means that there must either be a resolution authorising the picket or a resolution permit-
ting a trade union official to authorise a picket in terms of section 69 (1). It should be formal
and in writing.
(3) A copy of the resolution authorising the picket ought to be served on the employer
before the commencement of the picket.
(4) The authorisation applies only to its members and its supporters.
26. Purpose of the picket.—(1) The purpose of the picket is to peacefully encourage non-
striking employees and members of the public to oppose a lockout or to support strikers involved
in a protected strike. The nature of that support can vary. It may be to peacefully encourage
employees not to work during the strike or lockout. It may be to peacefully dissuade replacement
labour from working. It may also be to persuade members of the public or other employers and
their employees not to do business with the employer.
(2) The strike must be a protected strike. In normal cases, employees picket at their own
place of work or other designated areas as agreed by the parties, or provided for by the CCMA in
support of their strike against their own employer. Cases do arise, however, where employees
picket at their own place of work in support of a strike between another employer and its em-
ployees. This is what is contemplated in section 66 of the Act as a “secondary strike”. In this case,
in order to be protected, the picket must further satisfy the requirements of a lawful secondary
strike in terms of section 66. This is because the definition of “secondary strike” in the section
includes “conduct in contemplation or furtherance of a strike”. A picket is “conduct in contem-
plation or furtherance of a strike.”
(3) The requirements for a protected secondary strike are –
(a) the strike that is to be supported by the secondary strike must itself be a protected
strike;
(b) the employer of the employees taking part in the secondary strike must have re-
ceived written notice of the proposed picket at least 7 days prior to its commence-
ment; and
(c) the nature and extent of the secondary strike must be reasonable in relation to the
possible direct or indirect affect that the secondary strike may have on the business
of the primary employer.
(4) If a picket is in support of an unprotected strike, the picket is not protected by sec-
tion 69 of the Act.
(5) Pickets may be held in opposition to a lockout. Section 69 (1) does not distinguish
between protected and unprotected lockouts. This means that a picket may be held in opposi-
tion to both a protected and an unprotected lockout.
27. No picketing unless rules agreed or determined.—No picket in support of a protected
strike or in opposition to a lockout may take place unless rules have been agreed or determined
by the CCMA in terms of section 65 (9) of the Act.
28. Agreed picketing rules.—(1) A registered trade union and employer or employer
organisation should seek to conclude a collective agreement on standing picketing rules to
regulate pickets in support of a protected strike or in opposition to a lockout.
(2) The following matters should be considered in such a collective agreement –
(a) the nature of the authorisation and its service upon the employer;
(b) the notice of the commencement of the picket including the place, time and the
extent of the picket;
(c) the nature of the conduct in the picket;
(d) the number of picketers and their location;
(e) the modes of communication between marshals and employers and any other
relevant parties;
(f) the conduct of the pickets on the employer’s premises; and
(g) this code of good practice and the Default Picketing Rules annexed to this Code.
(3) If the parties to a dispute giving rise to a protected strike or lockout have not con-
cluded a collective agreement regulating pickets, the parties must endeavour to agree picketing
rules before the commencement of the protected strike or lockout taking into account the
factors referred to in sub-item (2). The trade union or employer may request the Commission to
facilitate such an agreement in terms of section 69 (4) of the Act.
29. Default picketing rules.—(1) If there is no collective agreement on picketing rules or
no picketing rules agreed during the conciliation process, the Commission must determine
picketing rules in accordance with the Default Picketing Rules determined in terms of section
69 (9) of the Act.
(2) In terms of section 69 (9) (b) of the Act, rules determined under clause (1) are bind-
ing on the trade union, its members and supporters, and the employer.
30. Pickets on employer premises or in other designated areas.—(1) A picket may take
place on the employer’s premises or other designated area with the permission of the employer.
The permission may not be unreasonably withheld. In order to determine whether the decision
of the employer to withhold the permission is reasonable, the factors, which should be taken
into account, include –
(a) the nature of the workplace e.g. a shop, a factory, a mine etc;
(b) the particular situation of the workplace e.g. distance from place to which public
has access, living accommodation situated on employer premises, etc;
(c) the number of employees taking part in the picket inside the employer’s premises;
(d) the potential for violence and other unlawful acts;
(e) the areas designated for the picket;
(f) time and duration of the picket;
(g) the proposed movement of persons participating in the picket;
(h) the proposals by the trade union to exercise control over the picket; and
(i) the conduct of the picketers.
31. Dissemination of picketing rules.—Employers, employer organisations and trade
unions must take measures to disseminate the picketing rules which may include measures –
(a) placing the rules on notice boards; and
(b) distributing copies of the rules to employees and private security officers.
32. Conduct in the picket.—(1) Although the picket may be held in any place to which
the public has access, the picket may not interfere with the constitutional rights of other persons.
(2) The trade union must –
(a) appoint convenors and marshals to monitor and control the picket as set out in the
picketing rules;
(b) provide the convenors, marshals with the agreed or determined picketing rules;
and
(c) take measures to ensure that the convenors, marshals and picketers understand
those rules.
(3) The picketers must conduct themselves in a peaceful, unarmed and lawful manner.
They may –
(a) carry placards;
(b) chant slogans; and
(c) sing and dance.
(4) Picketers may not –
(a) forcefully prevent or intimidate suppliers, clients and customers of the employer,
members of the public, employees who are not on strike and replacement workers
from entering or leaving the premises of the employer;
(b) commit any unlawful action, such as intimidating, coercing, threatening or assault-
ing any person or causing or threatening to cause any damage to any property
whether belonging to the employer or not;
(c) incite violence;
(d) wear masks; or
(e) have any dangerous weapons or objects in their possession.
33. Peace obligation and the role of police.—(1) It is not the function of the police to
take a view of the merits of a particular strike or lockout. Their role is to uphold the law and
keep the peace. The law does, however, give the police the power to take measures that may be
reasonably necessary to ensure that a strike and picket remains peaceful, unarmed and orderly.
In exercising these measures –
(a) the police may only intervene with any person/s who –
(i) the police reasonably believe is in possession of a firearm or dangerous
weapon;
(ii) displays a firearm or dangerous weapon;
(iii) has committed or threatens to commit an assault or damage to property;
(iv) intimidates or threatens any person entering or leaving the employer’s
property;
(v) unlawfully prevents the employer or another person from conducting their
business or from working or not working;
(vi) blocks any vehicle or person from entering or leaving the employer’s prem-
ises;
(vii) breaks into or enters the employer’s property without the employer’s
permission;
(viii) threatens or commits an act of public violence; or
(ix) commits any action prohibited by a court order.
(b) the police may only disperse a picket or gathering if –
(i) there is reasonable cause to believe that persons involved in the picket or
gathering may engage in any of the crimes referred to in (a) above; or
(ii) the picket or gathering has been interdicted under a court order and the
court orders the police to enforce court order;
(iii) persons involved in the picket or gathering commits or threatens to commit

an act of public violence;
(2) In the context of the constitutional right to picket peacefully and unarmed and
applying the factors listed in section 3 (2) of the Dangerous Weapons Act, 15 of 2013 to deter-
mine whether a person intends to use the object as a dangerous weapon, a dangerous weapon is
any object that could be used to injure or threaten a person or damage property. In the context
of a picket there is no other justifiable use for the possession or display of such an object. Cul-
tural implements carried by picketers must clearly not be carried or used in a manner intended
to intimidate or cause harm.
(3) Fundamental to promoting peaceful industrial action and peaceful lockouts, is
implementing the principle of seeking to resolve disputes as to the conduct of participants
through negotiations.
(4) The police have no responsibility to enforce the Act or any picketing rules. They
have no responsibility to enforce the terms of a court order interdicting a strike or a picket
unless ordered to do so by a court. The police may, however, assist the sheriff in serving a court
order if the police think that there may be a breach of the peace.
(5) Members of the police assigned to monitor strikes, lockouts and pickets should
where necessary conduct a threat analysis –
(a) should adopt a non-threatening presence;
(b) be sensitive to the potential presence of persons with disabilities and to consider
their safety and security when acting to disperse any picket or gathering;
(c) should use minimum force and non-lethal equipment such as shields, rubber
6
bullets, water cannons, stun grenades and tear gas ;
(d) should take into account that the use of that equipment can result in serious injury
and even death;
(e) may only use that equipment –
(i) after non-violent means have failed;
(ii) to the extent necessary, subject to prevailing circumstances and in compli-
ance with the law and all police regulations; and
(iii) in a proportional and lawful manner.
34. Peace obligation and role of private security.—(1) The role of private security is to
protect the property of the employer and client and ensure the safety of persons on the proper-
ty. Private security officers have no right to intervene in a strike or a picket or to enforce the Act
or any picketing rules made under them.
(2) A private security officer does not have the powers of the police but may arrest in
terms of section 42 of the Criminal Procedure Act, 51 of 1977 just as any other private person
may do, a person participating in the picket or gathering –
(a) who commits a Schedule 1 offence in the officer’s presence or the officer reason-
ably suspects the person of doing so such as public violence, malicious injury to
property and assault when a dangerous wound is inflicted;
(b) who the officer reasonably believes to have committed an offence and is escaping
from or being freshly pursued by a person who the officer reasonably believes has
the authority to arrest;
(c) who the officer sees engaged in a fight;
(d) if authorised by the employer, any person committing an offence on the employer’s
property.
(3) A private security officer may pursue a person referred to in (a) above.
(4) Any person arrested by a security officer in these circumstances must be brought as
soon as possible to a police station.
________________________
6 (Editorial Note: Footnote reference as per original Government Gazette.)

(5) Every employer that contracts with a private security company must ensure that –
(a) the company is registered as a security service provider in terms of the Private
Security Industry Regulation Act, 56 of 2001;
(b) it complies with the legislation and codes of conduct relating to the private security
industry and the requirements of the Private Security Regulatory Authority;
(c) its security officers tasked with protecting property of the employer during the
course of industrial action are adequately trained in crowd management and the
provisions of this Code in order to ensure that they act appropriately if conflict
escalates during the course of industrial action.
35. General rights, obligations and immunity.—(1) A person who takes part in a picket
protected in terms of the Act does not commit a delict or a breach of contract. This means that
the employer may not sue a person or a union for damages caused by a picket held in compli-
ance with section 69 of the Act and the applicable picketing rules.
(2) The employer may not take disciplinary action against an employee for participating
in a picket in compliance with section 69 of the Act and the applicable picketing rules. If an
employee’s conduct during a picket constitutes misconduct the employer may take disciplinary
action in accordance with the Act.
ANNEXURE B
DEFAULT PICKETING RULES8
1 PARTIES TO THE dispute

9 10
1.1 The parties to the dispute giving rise to the strike/lockout are –
.............................................................................. (name)
.............................................................................. (name)
2 BINDING NATURE
2.1 These Rules are binding on the parties to the dispute and their officers, officials,
members and supporters.
2.2 Nothing in these Rules prevents the parties to the dispute agreeing to their own rules
to replace or amend these Rules.
2.3 These Rules must be interpreted in accordance with –
2.3.1 sections 17, 18 and 23 of the Constitution;
2.3.2 section 69 of the Labour Relations Act, 66 of 1995 (Act);
2.3.3 The Code of Good Practice: Picketing (Code)
2.4 Where these Rules are silent, the relevant provisions of the Act and the Code apply.
3 PURPOSE OF THE PICKET

3.1 The only purpose of the picket is to approach and peacefully seek to persuade the fol-
lowing persons to support the strike or oppose the lockout by temporarily withholding
their services from, supplying goods and materials to, or working for the employer/s –
3.1.1 service providers, clients and customers of the employer;
3.1.2 members of the public; and
3.1.3 employees who are not on strike (other than essential or minimum service
employees) and replacement workers.
________________________
8 Picketing may only take place in terms of s 69. Gatherings related to unprotected strikes are subject to
the provisions of the Regulation of Gatherings Act.
9 Delete whichever is not applicable unless both a strike and a lockout are in place.
10 Commissioner to fill in the names of the parties to the dispute giving rise to the strike.
4 LOCATION OF PICKET AND NUMBER OF PICKETERS11

4.1 A picket may only be held at the places designated in Annexure A.
4.2 Only members and supporters of the strike may take part in the picket.
4.3 A picket at any designated location may not exceed the maximum number of members
or supporters determined by the Commissioner in that Annexure.
5 DURATION AND TIME OF PICKET

5.1 The picket may only commence at or after the commencement of the strike or lockout.
12
5.2 The picket may only take place during daylight hours.
6 NATURE AND CONDUCT OF PICKET

6.1 Picketers must at all times conduct themselves in a peaceful, unarmed and lawful
manner and not interfere with the constitutional rights of other persons
6.2 Subject to clause 6.3, picketers may for the purposes of the picket –
6.2.1 carry placards;
6.2.2 hand out pamphlets;
6.2.3 chant slogans, sing and dance;
6.2.4 be addressed by union officials and supporters; and
6.2.5 wear trade union t-shirts, hats, caps, badges and other paraphernalia.
6.2.6 approach and peacefully engage suppliers, clients, customers, employees (other
than essential or minimum service employees) and replacement workers not to
enter the premises and support the strike or oppose the lockout.
6.3 Any limitations on the activities listed in clause 6.2 in respect of specific locations are
13
detailed in Annexure A.
6.4 Picketers may not –
6.4.1 In performing the activities contemplated in clause 6.3 use hate or defamatory
speech or incite violence;
6.4.2 forcefully prevent or appear to prevent suppliers, clients and customers of the
employer, members of the public, employees who are not on strike and replace-
ment workers from entering or leaving the premises or any part of the premises
of the employer;
6.4.3 commit any unlawful action, such as intimidating, coercing, threatening or
assaulting any person or causing or threatening to cause any damage to any
property whether belonging to the employer or not;
6.4.4 wear masks; or
6.4.5 have any dangerous weapons or objects in their possession.
6.5 For the purposes of these Rules, dangerous objects or weapons includes any object that
could be used to injure or threaten a person or damage property. In the context of a
picket there is no other justifiable use for the possession or display of such an object, in
particular any of the following objects –
6.5.1 Knives, spears, pangas, bush knives or any similar object;
14
6.5.2 Sticks and knobkieries whether made of metal or wood;
________________________
11 The Commissioner must determine the location of the pickets and the number of picketers in each
designated location in accordance with section 69 (5) and (6) of the LRA, clauses XX of the Code and
any relevant court decision.
12 The Commissioner may amend this rule if the employer works night shift or the picket is rendered
ineffective because the employer has arranged for its suppliers, customers and clients to enter the prem-
ises at night.
13 The Commissioner may, for example, limit the activity of a picket in a shopping mall or business
complex to carrying placards and handing out pamphlets.
14 To be discussed further.
6.5.3 Whips and sjamboks;

6.5.4 Bricks, stones or any similar object that can be thrown or propelled in a manner
that can cause injury or damage to property;
6.5.5 Any inflammable substance;
6.5.6 Any liquid, foam or similar substance that can be sprayed or extruded to cause
injury or damage to property.
7 CONTROL OF PICKETS
7.1 Union officials and managers are accountable and should be available to resolve prob-
lems may the need arise.
7.2 The name and contact details of the Commissioner responsible for the conciliation of
the dispute giving rise to the strike or lockout and these Rules is set out in Annexure B.
7.3 The names and contact details of the trade union convenor/s of the picket and the
employer representative/s are listed in Annexure B15.
7.4 The convenor/s of the picket is responsible for overseeing the picket and ensuring that
the picket complies with the rules.
7.5 The trade union must appoint one marshal for every ten picketers to monitor and con-
trol the picket at each designated location. The full names and contact details of the
marshals are listed in Annexure B.
7.6 The convenors, marshals and employer representatives must be present from the start
to the end of the picket each day.
7.7 The convenor, the marshals and the employer representative must –
7.7.1 at all times during the picket have a copy of these Rules in their possession;
7.7.2 wear the armbands or vests described in Annexure B to identify themselves as
16
convenors or marshals ; and
7.7.3 be present from the start to the end of each day of the picket.
7.8 The names and telephone numbers of the convenor and marshals must be set out in
Annexure B.
7.9 Any change to a convenor, employer representative and marshal must be sent by a text
message to the persons listed in Annexure B.
7.10 The trade union must ensure that its members and supporters who participate in a
17
picket wear the identification described in Annexure B.
7.11 The trade union must train its convenors and marshals on the Code and the Rules and
their responsibilities to ensure a lawful and peaceful picket.
8 EMPLOYER CONDUCT
8.1 The employer or any person in authority at the workplace or acting on the employer’s
behalf may not –
8.1.1 in any way hinder or obstruct the lawful and peaceful conduct of the picket;
8.1.2 undermine any employee’s right to lawfully and peacefully participate in the
picket or discipline or threaten to discipline any employee for peacefully and
lawfully doing so;
8.1.3 engage in or permit conduct which is provocative or may incite conflict; or
8.1.4 carry a dangerous weapon of any kind while in contact with the picketers.
8.1.5 use hate or defamatory speech or incite violence
________________________
15 The Commissioner must list the names and contact details of the convenor/s and employer representa-
tive/s in Annexure B.
16 The Commissioner to describe the armbands or vests identifying the members or officials as convenors
and marshals.
17 The Commissioner to describe the T-shirts, hats, badges or other forms of identification of participants
in the picket in Annexure B.
8.2 The employer must ensure that any private security company employed by the employ-
er complies with the requirements relating to such companies under the Code of Good
Practice on Collective Bargaining and Industrial Action.
8.3 The employer must ensure reasonable access to toilet facilities and drinking water to
persons participating in a picket
9 PICKETING ON EMPLOYER’S PREMISES OR IN OTHER DESIGNATED AREAS

9.1 If picketing is to take place on the employer’s premises or other designated areas, the
employer must, where applicable provide the trade union with written confirmation of
the health and safety rules to be observed before, during and after the picket.
9.2 Participants in a picket on the employer’s premises or in any other designated area
must, in addition to the requirements set out in clauses 6 and 7 above –
9.2.1 remain within the designated picketing area(s);
9.2.2 observe the health and safety rules and regulations applicable in the workplace;
9.2.3 refrain from causing any damage to property or allowing any damage to be
caused; and
9.2.4 leave the premises and the facilities in the condition in which they found it.
10 FAILURE TO COMPLY WITH THESE RULES

10.1 Any person may refer a dispute concerning the interpretation or application of these
Rules to the Commissioner responsible for the conciliation of the dispute giving rise to
the strike or lockout and these Rules.
10.2 The Labour Court may suspend a picket at one or more designated locations if these
Rules have not been complied with in terms of section 69 (12) (c) of the Act.
11 DISPUTE RESOLUTION
11.1 Any dispute about the interpretation or application of these Rules or any alleged
breach thereof shall be dealt with in accordance with section 69 (8), (9), (10) and (11)
of the Act or section 158 (1) (g) of the Act. This does not affect any other right that any
person may have in terms of the Act or any other law.
11.2 It is recorded that the employer, the union and persons taking part in the picket are
subject to the protections and provisions set out in section 67 of the Act.
12 POLICE INVOLVEMENT
12.1 These Rules do not affect the right of any person to ask the South African Police Ser-
vice or any security organisation responsible for maintaining safety and security at or
near the workplace to investigate or deal with any unlawful conduct or alleged unlawful
conduct.
12.2 If this happens, the employer and the union undertake to cooperate with the police or
security organisation in the performance of their duties and the union undertakes to
do everything possible to ensure that its members and supporters will do the same.
13 TERMINATION
These Rules will remain in effect until the settlement of the dispute, the termination of the
strike, termination of the picket by the union or until it is terminated or reviewed by mutual
agreement, whichever may come first.
16
WORKER PARTICIPATION
16.1 Introduction
An important development in South African labour relations is the introduction of work-
place forums, in terms of which worker participation in decision-making at the workplace
has been established. Workplace forums are designed to facilitate a shift from adversarial
collective bargaining to joint problem-solving and decision-making in the workplace. The
purpose of workplace forums, therefore, is not to undermine collective bargaining, but to
supplement it.
The following are important features of workplace forums:
• not only union members, but all employees are included in the system and, therefore,
have a say in workplace decisions which affect them directly. The LRA gives a special
meaning to “employee” in the context of workplace forums. An “employee” is defined as
any person who is employed in a workplace, except a senior managerial employee whose
contract of employment or status confers the authority to represent the employer in
dealings with the workplace forum or determine policy and take decisions on behalf of
the employer that may be in conflict with the representation of the employees in the
workplace;
• a workplace forum can be established only at the request of a registered majority trade
union. Two or more registered trade unions may act jointly in order to constitute a
majority for the purpose of initiating a workplace forum;
• the parties, the employer and the union(s), are encouraged to create their own struc-
tures. If they reach agreement (under the auspices of the CCMA) the workplace forum is
governed by that agreement. Failure to reach agreement will result in the application of
the provisions of the LRA;
• parties other than those the LRA refers to may also establish a workplace forum along
the lines of the statutory workplace forum, but without the underpinning of the Act;
• the matters for consultation and joint decision-making found in the LRA, agreed upon
by NEDLAC, may be varied by agreement between the parties;
• workplace forums may also be established in the public service. Such establishment will be
regulated in a Schedule promulgated by the Minister for the Public Service and Adminis-
tration.
The general functions of a workplace forum include the promotion of the interests of all
employees in the workplace, not only the interests of union members, and the enhancement
of efficiency in the workplace. In order to achieve these goals, the forum must be consulted
by the employer on certain matters and in some instances it participates in joint decision-
making.
The workplace forum has to meet regularly to ensure its efficient functioning and the
employer is required to meet with the forum on a regular basis. Furthermore, the members
of the workplace forum must meet with the employees to report on forum activities and on
those matters discussed with the employer. All meetings must be held during working hours
without loss of pay for the employees.
331
16.2 Establishment of a workplace forum (ss 80, 81 and 92)

A workplace forum can be established only:
• at the request of a registered majority trade union (or two or more unions acting jointly)
in the specific workplace;
• if the employer employs 100 or more employees in the workplace; and
• if there is no other workplace forum functioning within the workplace.
The trade union(s) submit an application to the CCMA for the establishment of a workplace
forum. A copy of the application must be served on the employer. If the CCMA is satisfied
that the employer employs 100 or more employees, that the applicant union is a registered
majority trade union and that there is no functioning workplace forum in the workplace, a
commissioner is appointed to assist the parties in establishing a workplace forum by way of a
collective agreement. If a collective agreement is concluded, the provisions thereof apply. If
a collective agreement is not concluded, the commissioner must establish a workplace forum
and determine the provisions of its constitution in accordance with Schedule 2 to the Act
(see appendix to this Chapter).
If a registered majority union is recognised by the employer in terms of a collective
agreement to bargain for all the employees in a workplace, that union may apply for the
establishment of the so-called “union-based workplace forum”. The application is submitted
to the CCMA and the union may choose the members of the forum from amongst its
elected representatives in the workplace.
If there are 1 000 or more employees in the workplace, one employee may be appointed
as a full-time member of the workplace forum. The employer is obliged to pay such a mem-
ber the same remuneration that he earned prior to the appointment. After expiry of the
term served, the member must be reinstated to the position he held prior to the appoint-
ment or any higher position to which such a person could have advanced.
The constitution of a workplace forum must provide, inter alia, for the following (s 82):
• formulae for determining the number of seats in the forum and the distribution of those
seats to reflect the occupational structure of the workplace;
• the election of members of the forum by the employees in the workplace;
• the appointment of an employee election officer, as well as the procedure and manner
in which elections and ballots must be conducted;
• the nomination of candidates;
• the terms of office of members;
• meetings of the forum; facilities which the employer must provide to enable the forum to
perform its functions;
• the appointment of full-time members of the forum where there are more than 1 000
employees in a workplace;
• time off with pay during working hours which the employer must allow members in order
to perform their functions as members of the forum and to receive the necessary training;
• amendment of the constitution by agreement between the representative trade union and
the employer;
• provision for office-bearers or officials of the union to attend meetings of the workplace
forum; and
• the manner in which decisions are to be made.
The workplace forum may invite any expert to attend its meetings and such expert will be
entitled to any information the forum is entitled to.
Dissolution of a workplace forum: A registered majority union or two or more unions acting
jointly may request a ballot to dissolve a workplace forum. An election officer must be
appointed to conduct the ballot. If more than 50% of the employees support the dissolu-
tion, the workplace forum must be dissolved.
Worker participation 333
16.3 Worker participation

The Act provides for three different forms of participation by the workplace forum, varying
from information-sharing to joint decision-making.
16.3.1 Disclosure of information (ss 89–91)

At a meeting between the workplace forum and the employer, the employer must present a
report on its financial and employment situation, its performance since the last report and
its anticipated performance in the short and long term. The employer must further consult
with the workplace forum on any matter arising from the report that may affect the employ-
ees. At one of the meetings between members of the workplace forum and the employees,
the employer must report on the same issues.
An employer must also disclose to the workplace forum all relevant information to allow the
forum to engage effectively in consultation and joint decision-making. The employer is not
required to disclose information that is legally privileged, confidential or that cannot be
disclosed in terms of a court order or the law. Private personal information of an employee
may also not be disclosed, unless that employee consents to its disclosure. The employer must
notify the workplace forum in writing if he is of the view that information is confidential.
Any dispute over the disclosure of information must be referred to the CCMA for concili-
ation and, if necessary, arbitration.
On request, documented information that must be disclosed by the employer must be
made available for inspection to the members of the workplace forum. The employer must
provide copies of the documentation to members of the workplace forum.
16.3.2 Matters for consultation (ss 84–85)

Where matters for consultation are not regulated by a collective agreement, a workplace
forum is entitled to be consulted by the employer about proposals relating to any of the fol-
lowing matters:
• restructuring the workplace, including the introduction of new technology and new work
methods;
• changes in the organisation of work;
• partial or total plant closures;
• mergers and transfers of ownership in so far as they impact on the employees;
• the dismissal of employees for reasons based on operational requirements;
• exemptions from any collective agreement or any law;
• job grading;
• criteria for merit increases or the payment of discretionary bonuses;
• education and training;
• product development plans; and
• export promotion.
Any additional matters to be consulted about may be conferred on the workplace forum by
a bargaining council, a collective agreement or any law.
Before implementing any proposal in relation to any matter referred to above, the
employer must consult with the workplace forum with a view to reaching consensus. The
workplace forum must also be offered an opportunity to make representations and to put
forward alternative proposals. If the employer does not agree, he must state the reasons for
disagreeing. If the employer and the workplace forum cannot reach consensus, the employer
must invoke the procedure agreed upon to resolve any differences before implementing
the proposal.
Subject to applicable occupational health and safety legislation, a representative trade

union and employer may also agree that:
• the employer must consult with the workplace forum on any measures to ensure health
and safety at work;
• a meeting between the workplace forum and the employer constitutes a meeting of a
health and safety committee established in the workplace; and
• one or more members of the workplace forum act as health and safety representatives for
the purposes of that legislation.
16.3.3 Joint decision-making (s 86)

The matters for joint decision-making, unless they have been regulated by a collective
agreement with the trade union, are the following:
• disciplinary codes and procedures;
• rules relating to the proper regulation of the workplace in so far as they apply to conduct
not related to the work performance of employees;
• measures designated to protect and advance persons disadvantaged by unfair discrimin-
ation; and
• changes by the employer or employer-appointed representatives on trusts or boards of
employer-controlled schemes to the rules regulating social benefit schemes.
The trade union and the employer may by way of collective agreement confer additional
matters for joint decision-making on the workplace forum or remove any matter from the
list.
If the employer does not reach consensus with the workplace forum, the employer may
refer the dispute to arbitration in terms of any agreed procedure or, if there is no agreed
procedure, to the CCMA. The CCMA must attempt to resolve the dispute through concilia-
tion, failing which the employer may request that the dispute be resolved through arbi-
tration.
This process may be illustrated as follows:
Award
Implementation Arbitration
Resolved Failure to resolve
Award Conciliation
Employer refers dispute to

Implementation arbitration in terms of agreed Employer refers
of proposal procedure
OR dispute to CCMA
Consensus No consensus
Employer and workplace forum

discuss issues for joint decision-making
Proposal by employer
16.4 Dispute resolution (s 94)

Any party to a dispute over the interpretation or application of Chapter 5 of the LRA
(dealing with workplace forums) may refer the dispute to the CCMA. The CCMA has
exclusive jurisdiction to conciliate and arbitrate disputes concerning workplace forums.
Questions
Question 1
Define the following in terms of Chapter 5 of the LRA, i.e. in respect of workplace forums:
1.1 a “representative” union; (3)
1.2 an employee. (4)
Question 2
Discuss the establishment and functions of a workplace forum. (15)
Question 3
3.1 Discuss the disclosure of information by an employer to a workplace forum and to
employees. (6)
3.2 A dispute arises about the disclosure of information by an employer. Discuss the pro-
cedure that must be followed to resolve the dispute. (5)
Question 4
Discuss the matters for consultation between a workplace forum and the employer. (12)
Question 5
5.1 Name the matters for joint decision-making prescribed by the LRA. (3)
5.2 Describe the manner in which the matters for decision-making prescribed by the LRA
may be altered. (2)
5.3 An employer and the workplace forum cannot reach consensus on one of the matters
for joint decision-making. How can the dispute be resolved? (3)
Question 6
A supermarket chain has its head office in Cape Town and ten branches dispersed around
the country. Discuss the possibility of the establishment of one or more workplace forums:
6.1 if the branches are not regarded as separate workplaces; (5)
6.2 if the branches are regarded as separate workplaces. (5)
Question 7
An employer in the food industry has 300 employees in its employment. The employees are
all working in the same workplace and the occupational structure is as follows: 200 employ-
ees are manual workers; 50 are administrative and clerical employees and 50 are super-
visory, managerial and technical employees. Explain how the workplace forum should be
composed. (8)
Appendix
SCHEDULE 2
GUIDELINES FOR CONSTITUTION OF WORKPLACE FORUM
1. Introduction
(1) This Schedule contains guidelines for the constitution of a workplace forum. It is intended
to guide representative trade unions that wish to establish a workplace forum, employers and
commissioners.
(2) This Act places the highest value on the establishment of workplace forums by agreement
between a representative trade union and an employer. The role of the commissioner is to facili-
tate an agreement establishing the structure and functions of a workplace forum. If agreement is
not possible, either in whole or in part, the commissioner must refer to this Schedule, using its
guidelines in a manner that best suits the particular workplace involved.
(3) For convenience, the guidelines follow the sequence of the paragraphs in section 82 of
this Act.
2. Number of seats in workplace forums (s 82(1)(a))
The formula to determine the number of seats in the workplace forum should reflect the size,
nature, occupational structure and physical location of the workplace. A guideline may be:
(a) in a workplace in which 100 to 200 employees are employed, five members;
(b) in a workplace in which 201 to 600 employees are employed, eight members;
(c) in a workplace in which 601 to 1 000 employees are employed, 10 members;
(d) in a workplace in which more than 1 000 employees are employed, 10 members for
the first 1 000 employees, plus an additional member for every additional 500 employ-
ees, up to a maximum of 20 members.
3. Distribution of seats to reflect occupational structure (s 82(1)(b))
The formula to determine the distribution of seats in the workplace forum must reflect the occu-
pational structure of the workplace.
Example:
There are 300 employees in a workplace. The occupational structure is as follows: 200 employees
are manual employees; 50 are administrative and clerical employees; and 50 are supervisory,
managerial and technical employees. The six seats may be distributed as follows:
4 seats for members to be elected from candidates nominated from among manual employees
1 seat for members to be elected from candidates nominated from among the administrative
and clerical employees
1 seat for members to be elected from candidates nominated from among the supervisory,
managerial and technical employees
4. Elections (S 82(1)(c), (d), (g), (h), (i) and (j))
(1) The constitution must include provisions concerning the appointment of an election
officer.
Example:
(a) Every election or by-election in relation to a workplace forum must be conducted by
an election officer appointed by agreement between the representative trade union
and the employer.
(b) If the trade union and the employer cannot agree, the trade union may apply to the
Commission to appoint an election officer.
(c) The Commission must appoint an election officer to conduct a by-election only if it is
satisfied that the workplace forum cannot function adequately without a by-election.
(2) The constitution must set out what the election officer should do and the procedure for
an election.
Example:
(a) Thirty days before each election of members of the workplace forum, the election
officer must:
(i) prepare a list of all employees in the workplace; and
(ii) call for nominations for members of the workplace forum.
(b) Any employee may be nominated as a candidate for election as a member of the
workplace forum by:
(i) any registered trade union with members employed in the workplace;
(ii) a petition signed by not less than 20 per cent of the employees in the workplace
or 100 employees, whichever number of employees is the smaller.
(c) Any employee who is a member or has previously served as a member of a workplace
forum is eligible for re-election.
(d) Fourteen days before each election of members of the workplace forum, the election
officer must:
(i) confirm that the nominated candidates qualify for election;
(ii) publish a list of all qualified candidates who have been properly nominated; and
(iii) prepare a ballot for the election, listing the nominated candidates in alphabet-
ical order by surname.
(e) Voting must be by secret ballot.
(f) Every employee is entitled to vote in the election of the workplace forum during
working hours at the employer’s premises.
(g) Every employee in the workplace is entitled to cast a number of votes equal to the
number of members to be elected to the workplace forum.
(h) Every employee may cast one or more of those votes in favour of any candidate.
5. Terms of office (s 82(1)(k), (l) and (m))

(1) The constitution must provide that the members of a workplace forum remain in office
until the first meeting of the newly elected workplace forum.
(2) The constitution must include provisions allowing the members to resign as well as provi-
sions for the removal of members from office.
Example:
(a) A member of a workplace forum may resign by giving written notice to the chairperson.
(b) A member of a workplace forum must vacate that office:
(i) when the member’s resignation takes effect;
(ii) if the member is promoted to senior managerial status;
(iii) if the member is transferred from the workplace;
(iv) if the member’s employment is terminated;
(v) as a result of an award of a commissioner; or
(vi) if the representative trade union that nominated a member removes the member.
(c) The representative trade union, the employer, or the workplace forum may apply to
the Commission to have a member of the workplace forum removed from office on
the grounds of gross dereliction of the duties of office.
(d) Twenty per cent of the employees in the workplace may submit a signed petition to
the Commission applying for the removal from office of a member of the workplace
forum on the grounds of gross dereliction of the duties of office.
(e) An application to remove a member of a workplace forum from office must be
decided by arbitration under the auspices of the Commission.
(f) A by-election to fill any vacancy in the workplace forum must be conducted by an
election officer.
6. Meetings of workplace forum (s 82(1)(n))
The constitution must include provisions governing meetings of the workplace forum.
Example:
(a) The first meeting of a newly elected workplace forum must be convened by the elec-
tion officer as soon as practicable after the election.
(b) At that meeting the members of the workplace forum must elect from among their
number a chairperson and a deputy chairperson.
(c) The workplace forum must meet whenever necessary, but at least once a month.
(d) A quorum of the workplace forum must be a majority of the members of the work-
place forum holding office at any time.
(e) A decision of the majority of the members of the workplace forum present at the
meeting must be the decision of the workplace forum.
(f) The meetings between members of the workplace forum and the employees should
be at least four times a year.
Example 1:
In a workplace that is a single place, the meetings with the employees should be with all the
members of the workplace forum.
Example 2:
In a workplace that is geographically dispersed, the meetings with the employees need not be
with all the members of the workplace forum
7. Time off for members of workplace forum (s 82(1)(p))
The constitution must include provisions governing time off for members to perform their func-
tions.
Example:
(a) A member of a workplace forum is entitled to take reasonable time off with pay
during working hours for the purpose of:
(i) performing the functions and duties of a member; and
(ii) undergoing training relevant to the performance of those functions and duties.
(b) The right to time off is subject to conditions that are reasonable, so as to prevent the
undue disruption of work.
(c) The costs associated with the training must be paid by the employer, if those costs are
reasonable, having regard to the size and capabilities of the employer.
8. Facilities to be provided to workplace forum (s 82(1)(r))
The constitution must require the employer to provide adequate facilities to the workplace for-
um to perform its functions.
Example:
(a) The employer must provide, at its cost:
(i) fees, facilities and materials that are necessary for the conduct of elections and
by-elections of the workplace forum; and
(ii) administrative and secretarial facilities that are appropriate to enable the mem-
bers of the workplace forum to perform their functions and duties.
(b) These facilities must include, but are not limited to, a room in which the workplace
forum may meet and access to a telephone.
(c) The costs incurred by the employer in complying with the provisions of paragraphs
(a) and (b) must be reasonable, having regard to the size and capabilities of the em-
ployer.
9. Experts (s 82(1)(t))
The constitution may provide for the use of experts.
Example:
(a) A workplace forum may ask experts to assist it in the performance of any of its func-
tions.
(b) An expert must ensure that there is no conflict of interest between the assistance
given to one workplace forum and another.
(c) An expert may attend any meeting of the workplace forum and, at its request,
address any meetings of the workplace forum including a meeting with the employer
or the employees.
(d) An expert is entitled to any information to which the workplace forum is entitled and
may inspect and copy any document.
10. Establishment of co-ordinating and subsidiary workplace forums (s 82(2)(b))

(1) Where an employer carries on or conducts two or more operations that are independent
of each other by reason of their size, function or organisation, the constitution may provide for
the establishment of a co-ordinating workplace forum with jurisdiction over those matters men-
tioned in sections 84 and 86 that affect the employees generally and for the establishment of a
subsidiary workplace forum in each of the workplaces with jurisdiction over those matters that
affect only the employees in that workplace.
(2) Where the employer has a workplace that is geographically dispersed and there are mat-
ters that are of local interest rather than general interest, the constitution may establish a co-
ordinating workplace forum with general jurisdiction and subsidiary workplace forums with local
interest jurisdiction.
Example:
A bank with a head office may have many branches dispersed throughout the country. If the
branches are not regarded as separate workplaces, the bank may have one workplace forum for
all its employees or the constitution may allow for the establishment of a co-ordinating work-
place forum at head office level and in certain or all of the branches allow the establishment of
subsidiary workplace forums that will deal with matters that affect only the employees in those
branches.
17
DISMISSALS
17.1 Introduction
Many of the current principles pertaining to dismissals were developed by the Industrial
Court in terms of its unfair labour practice jurisdiction under the LRA of 1956. The days of
“hiring and firing” an employee at will are forever gone because the emphasis is now on
fairness. Indeed, section 185 of the Labour Relations Act of 1995 (LRA) guarantees a right
not to be unfairly dismissed – see TSI Holdings (Pty) Ltd v NUMSA & Others [2006] 7 BLLR
631 (LAC).
Two requirements need to be satisfied to ensure a fair dismissal, laid down by the old
Industrial Court and now codified in the 1995 LRA: substantive fairness and procedural
fairness (s 188). The Labour Court in countless of its decisions confirmed these require-
ments for a fair dismissal (e.g. Booysen v SAPS & Others [2008] 10 BLLR 928 (LC)).
Substantive fairness refers to a valid and fair reason to dismiss. The LRA recognises three
grounds as valid reasons for a dismissal: an employee’s misconduct, an employee’s incapa-
city and the employer’s operational requirements (s 188). It is accordingly no longer
possible to simply give an employee notice and then terminate his services. There must be a
reason for giving notice to terminate services.
Procedural fairness refers to a procedure during which the employee is given an oppor-
tunity to be heard before a dismissal is effected. The Industrial Court, in its 25 years of
existence and through its innumerable judgments, developed a “checklist” of what a fair
procedure comprises and what will be struck down as unfair. It turned out that the proced-
ure championed by the Industrial Court closely resembled criminal proceedings. An em-
ployee was “accused” of some wrongdoing, “charged” and called to a (disciplinary) hearing,
found guilty and dismissed.
The LRA of 1995 does not envisage such a formal approach to procedural fairness. Sec-
tion 188 simply requires a “fair procedure”, without defining it, but then refers to the Code
of Good Practice: Dismissal (Schedule 8), which provides some suggestion of what is meant
by a “fair procedure”. Item 4 of Schedule 8 specifically states that the procedure need not
be a “formal enquiry”, which suggests a less rigid approach as the one adopted by the old
Industrial Court. Indeed, in Moropane v Gilbeys Distillers and Vintners (Pty) [1997]10 BLLR
1320 (LC) the Labour Court held that procedural fairness in terms of the 1995 LRA
“demands less stringent and formalised compliance than was the case under the unfair
labour practice jurisprudence of the Industrial Court”. This approach was followed in later
judgments.
In Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others [2006] 9 BLLR 833
(LC) the Court rejected the Industrial Court’s criminal justice model for procedural fair-
ness and propagated a less formal procedure. In Mogothle v Premier of the North West Province
& Others [2009] 4 BLLR 331 (LC) the Labour Court was of the view that “procedural
fairness would be satisfied by an informal hearing that facilitates a process of dialogue and
reflection”.
341
Despite the more relaxed requirements and the Labour Court judgments, the majority of
employers still follow the old model and even some of the CCMA commissioners, in arbitra-
tions, prefer the checklist approach.
17.2 Definition of dismissal (s 186(1))

Unlike the 1956 LRA, the LRA of 1995 defines a dismissal. In terms of section 186(1) a
dismissal means that
(a) an employer has terminated employment with or without notice;
(b) an employee employed in terms of a fixed-term contract of employment reasonably expect-
ed the employer –
(i) to renew the fixed-term contract on the same or similar terms, but the employer
offered to renew it on less favourable terms or did not renew it or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the
same or similar terms as the fixed-term contract, but the employer offered to retain
the employee on less favourable terms or did not offer to retain the employee;
(c) an employer refused to allow an employee to resume work after she took maternity leave in
terms of any law, collective agreement or her contract of employment;
(d) an employer who dismissed a number of employees for the same or similar reasons has
offered to re-employ one or more of them, but has refused to re-employ another (selective
re-employment);
(e) an employee terminated employment with or without notice because the employer made
continued employment intolerable for the employee (constructive dismissal);
(f) an employee terminated employment with or without notice because the new employer,
after a transfer in terms of section 197 or section 197A, provided that employee with em-
ployment conditions that are substantially less favourable than those provided by the old
employer (a form of constructive dismissal in the context of a section 197 transfer).
Considering this definition, it is clear that the LRA of 1995 gives a broader meaning to what
was understood as “dismissal” in the past. This is so because it recognises a variety of termina-
tions, some of which were developed by the Industrial Court, as forms of dismissal.
In the first instance section 186(1)(a) states that termination with or without notice con-
stitutes a dismissal. Before the 1995 LRA it was possible for an employer to terminate the
services of an employee on notice of a duration required by the employment contract,
legislation or a collective agreement, e.g. one month. The employer was not required to
have a valid and fair reason or observe a fair procedure before giving notice and then
terminating employment. The LRA, however, now requires an employer to adhere to the
requirements of substantive and procedural fairness so that even if the required notice is
given, the employer must have a reason for the intended termination and follow a fair
procedure.
In NULAW v Barnard NO & Another [2001] 9 BLLR 1002 (LAC) the Labour Appeal Court
held that any act on the part of the employer that brings the employment contract to an
end in a manner recognised by law constitutes a dismissal within the meaning of section
186(1)(a). See also Ouwehand v Hout Bay Fishing Industries [2004] 8 BLLR 815 (LC);
Marneweck v SEESA Ltd [2009] 7 BLLR 669 (LC); Sindane v Prestige Cleaning Services [2009] 12
BLLR 1249 (LC); NUMSA & Others v Abancedisi Labour Services [2013] 12 BLLR 1185 (SCA);
Kukard v GKD Delkor (Pty) Ltd [2015] 1 BLLR 63 (LAC).
The second form of dismissal, found in section 186(1)(b), relates to the non-renewal of a
fixed-term contract. A fixed-term contract is concluded for a specified period or for a specific
project and, based on the principles of Contract Law, terminates automatically upon expiry of
the period or completion of the project. The old Industrial Court deviated from the ordinary
contractual principles because of the ongoing nature of the employment relationship. If,
according to the Industrial Court, the fixed-term contract created an expectation of an
Dismissals 343
ongoing relationship, the failure to renew the contract constituted a dismissal. This sentiment
has been incorporated in the 1995 LRA and is now recognised as a form of a dismissal.
Initially section 186(1)(b) declared the non-renewal of a fixed-term contract or the re-
newal on less favourable terms a dismissal if the employee could prove that he had a rea-
sonable expectation of renewal on the same or similar terms. The Labour Court debated
whether this provision included an expectation of permanent employment and was not
consistent in its decisions (see e.g. Dierks v UNISA [1999] 4 BLLR 304 (LC); McInnes v
Technikon Natal [2000] 6 BLLR 701 (LC); University of Cape Town v Auf der Heyde [2001] 12
BLLR 1316 (LAC)) until the Labour Appeal Court in University of Pretoria v CCMA & Others
[2012] 2 BLLR 164 (LAC) eventually decided that section 186(1)(b) was confined to fixed
term and not permanent employment.
The legislature took note of the debate and in the 2014 amendments to the LRA includ-
ed an expectation for permanent employment. Thus, if an employee can prove that he had
a reasonable expectation of the renewal of a fixed-term contract or of permanent employ-
ment and the employer did not renew the contract or did not employ him permanently (or
if the employer provided less favourable conditions), a dismissal has taken place and the
fairness of that dismissal will have to be determined.
An employee who alleges a reasonable expectation of renewal of a fixed-term contract
bears the onus of proving that expectation. See Malandho v SABC [1997] 5 BLLR 555 (LC);
Dierks v UNISA [1999] 4 BLLR 304 (LC); McInnes v Technikon Natal [2000] 6 BLLR 701
(LC); University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC); SACTWU &
Another v Cadema Industries (Pty) Ltd [2008] 8 BLLR 790 (LC); SA Rugby Players’ Association
(SARPA) & Others v SA Rugby (Pty) Ltd & Others; SA Rugby Pty Ltd v SARPU & Another [2008]
9 BLLR 845 (LAC); Joseph v University of Limpopo & Others [2011] 12 BLLR 1166 (LAC);
IMATU v City of Johannesburg Metropolitan Municipality & Others [2014] 6 BLLR 545 (LAC).
In the Dierks judgment the Court enumerated criteria that should be considered in deter-
mining whether a reasonable expectation existed. While the list is not exhaustive, it is a
good indication of what should be considered to establish a reasonable expectation and has
been followed in numerous other cases
These decisions were based on the original section 186(1)(b). The amended section
186(1)(b) does not change the burden of proof; the onus remains on the employee to
prove a reasonable expectation, whether for a fixed term or whether for permanent
employment.
The purpose of section 186(1)(b) is to prevent the unfair practice of keeping an
employee on a temporary basis without security of employment until such time as the
employer wants to dismiss the employee without complying with the obligations imposed by
the LRA in respect of permanent employees (see Biggs v Rand Water (2003) 24 ILJ 1957
(LC)). It is because employees on fixed-term contracts have little job security and are
considered vulnerable employees that the new section 198B has been inserted into the
LRA.
Section 198B provides some protection to lower income employees who are employed on
a fixed term. In summary, an employee earning below the BCEA threshold is not supposed
to be employed for a fixed term of more than three months unless the work for which he is
employed is genuinely of a limited duration or unless the employer has a justifiable reason
(such as replacing an employee who is temporarily absent from work). If the employee is
employed in contravention of section 198B he is considered a permanent employee.
Prior to the LRA of 1995 female employees were at risk of losing their jobs if they were
pregnant and had to take maternity leave. It was only in the last years of the old LRA that
the courts started considering the job security of female employees. See Randall v Progress
Knitting Textiles Ltd (1992) 13 ILJ 200 (IC)).
Now, in terms of section 187 of the 1995 LRA, dismissal on the grounds of pregnancy or
for reasons related to pregnancy is automatically unfair. See Mashava v Cuzen & Woods
Attorneys [2000] 6 BLLR 691 (LC); Victor v Finro Cash & Carry (2000) 21 ILJ 2489 (LC);
Solidarity obo McCabe v SA Institute for Medical Research [2003] 9 BLLR 927 (LC); Mnguni v
Gumbi [2004] 6 BLLR 558 (LC); Ndlovu v Pather (2006) 27 ILJ 2671 (LC); Nieuwoudt v All-
Pak (2009) 30 ILJ 2451 (LC); Lukie v Rural Alliance CC t/a Rural Development Specialist [2004]
8 BLLR 769 (LC); Wallace v Du Toit [2006] 8 BLLR 757 (LC).
In the Lukie judgment the applicant took maternity leave with the approval of her man-
ager. The manager then informed her that she need not return to work after the birth of
her baby. She did not return to work and claimed that she had been dismissed. In terms of
section 186(1)(c), read with section 187, the Court found that she had been dismissed and
that, because the reason for her dismissal was related to her pregnancy, her dismissal was
automatically unfair.
In De Beer v SA Export Connection CC [2008] 1 BLLR 36 (LC) it was held that women are
protected, not only while pregnant but also while they are attending to the consequences of
the pregnancy, such as the need to take care of an ill new-born baby. A dismissal based on a
reason related to pregnancy will accordingly also constitute an automatically unfair dismis-
sal.
Under the previous LRA selective re-employment was considered an unfair labour practice.
It was, therefore, unfair for an employer to re-employ only some of a number of employees
dismissed for the same reason – for an illegal strike, for instance. The position changed with
some later decisions handed down by the Industrial Court when it was held that, when
employees were dismissed – in other words, when their contracts of employment were termin-
ated – they were no longer employees and the employer was not contractually bound to
employ them. It was thus competent for an employer to employ any person it deemed suitable
to perform the work. Because of the uncertainty created by the contradictory decisions of the
Industrial Court the legislature considered it necessary to clarify the situation, with the result
that the 1995 Act expressly defines, in section 186(1)(d), selective re-employment as a form of
dismissal.
Constructive dismissal was, in terms of the decisions of the Industrial Court under the
previous LRA, an unfair labour practice. It is now included in the definition of “dismissal”,
in section 186(1)(e). Rightly so, because everyone would agree that the resignation of an
employee due to unreasonable and excessive pressure by his employer is not a voluntary
resignation or termination of services, but a situation akin to a dismissal. See WL Ochse Webb
& Pretorius(Pty) Ltd v Vermeulen [1997] 2 BLLR 124 (LAC); Van der Riet v Leisurenet Ltd t/a
Health and Racquet Club [1998] 5 BLLR 471 (LAC); Pretoria Society for the Care of the Retarded
v Loots [1997] 6 BLLR 721 (LAC); Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC);
CEPPWAWU & Another v Glass & Aluminium 2000 CC [2002] 5 BLLR 399 (LAC); Mogorosi
and SA Reserve Bank (2008) 29 ILJ 439 (CCMA); Murray v Minister of Defence (2008) 29 ILJ
1369 (SCA); Eastern Cape Tourism Board v CCMA [2010] 11 BLLR 1161 (LC); Western Cape
Education Department v GPSSBC & Others [2014] 10 BLLR 987 (LAC); Metropolitan Health Risk
Management v Majatladi [2015] 3 BLLR 276 (LAC); National Health Laboratory Service v Yona
[2015] 10 BLLR 1002 (LAC); Bakker v CCMA & Others [2018] 6 BLLR 597 (LC); Nokeng Tsa
Taemane Local Municipality v Louw NO [2019] 1 BLLR 35 (LAC).
In Strategic Liquor Services v Mvumbi NO & Others [2009] 9 BLLR 847 (CC) the Constitu-
tional Court held that the test for establishing a constructive dismissal is that the employer
has made employment intolerable (not that the employee had no choice but to resign). See
also Van Wyk v Albany Bakeries Ltd [2003] 12 BLLR 1274 (LC).
The onus to prove that the employer made employment intolerable is on the employee –
see Jooste v Transnet Ltd t/a South African Airways [1995] 5 BLLR 1 (LAC).
When the LRA was amended in 2002 another form of constructive dismissal was intro-
duced when section 186(1)(f) was inserted into the definition of dismissal. Where the new
employer in a section 197 transfer provides substantially less favourable conditions of
employment, an employee can resign and claim constructive dismissal.
Dismissals 345
Another form of dismissal is found, not in the definition, but in the new section 198A.
Section 198A deals with the employment of labour broker (TES) employees who earn
below the BCEA threshold. If an employee performs a temporary service (as defined in
section 198A(1)) the TES is the employer. If the employee is not performing a temporary
service as defined, the client of the labour broker is deemed to be the employer and the
employee is deemed to be employed on an indefinite basis (subject to the provisions of
section 198B, dealing with fixed-term contracts). Termination of the employee’s services, at
the instance of the TES or the client, for the purpose of avoiding the deeming provisions or
because the employee has exercised a right in terms of the LRA is a dismissal (s 198A(4)).
17.3 Automatically unfair dismissals (s 187)

In terms of section 187 of the LRA some dismissals are automatically unfair. In the main a
dismissal is automatically unfair if an employer discriminates against an employee or if an
employee is dismissed because he exercised his rights in terms of the LRA.
• Dismissal because an employee exercises his

right to freedom of association.
• Dismissal because an employee has disclosed
information that he is lawfully required or en-
titled to give to another person.
• Dismissal because an employee is exercising
any of his rights conferred by the LRA.
• Dismissal because an employee participates in
any proceedings in terms of the LRA.
• Dismissal because an employee participates in
or supports a protected strike.
• Dismissal because an employee refuses to per-
form the duties of other employees while they
AUTOMATICALLY are participating in a protected strike or
UNFAIR during a lock-out.
DISMISSALS • Dismissal lock-out (dismissal of employees who
refuse to accept the employer’s demand).
• Dismissal because of the employee’s preg-
nancy, intended pregnancy or any reason re-
lated to the pregnancy.
• Dismissal because of the employer’s unfair
discrimination.
• Dismissal in the context of a transfer or reason
related to a transfer in terms of section 197 or
197A.
• Dismissal because an employee made a pro-
tected disclosure.
Section 4 of the LRA provides for the right to freedom of association. This right is protect-
ed in sections 5 and 187. An employee may not be dismissed for exercising his right to
associate. Dismissal because an employee is exercising any of the rights pertaining to free-
dom of association is an automatically unfair dismissal – FAWU v The Cold Chain & Others
[2007] 7 BLLR 638 (LC); Elliot International (Pty) Ltd v Veloo & Others [2014] 10 BLLR 955
(LAC).
A dismissal is also automatically unfair if the reason for the dismissal is the employee’s
participation in or support of a protected strike or protest action. Similarly, if an employee
is dismissed because he indicates an intention to participate in or support such action, the
dismissal is automatically unfair – SAAPAWU Free State v Fourie & Others [2007] 1 BLLR 67
(LC); Equity Aviation Services (Pty) Ltd v SATAWU & Others [2009] 10 BLLR 933 (LAC).
The termination of the services of an employee because he refuses or indicates an inten-
tion to refuse to do the work normally done by another employee who is participating in a
protected strike or who is being locked out is an automatically unfair dismissal, unless that
work is necessary to prevent actual danger to life, personal safety or health. It can be
assumed that the legislature had in mind the protection of life, safety and health of any
person and not only employees or their employer.
In terms of the LRA of 1956 an employer could make use of the so-called dismissal lock-
out to compel its employees to accept a proposal or offer. This amounted to a dismissal of
the employees on condition that they would be taken back only if they were willing to accept
the employer’s offer. This form of lock-out is now outlawed and, should an employer dis-
miss employees to compel them to accept a demand in respect of any matter of mutual
interest between the employer and employees, their dismissals will be automatically be unfair
– NUMSA v Zeuna-Starker Bop (Pty) [2003] 11 BLLR 1081 (LAC); NUMSA v Aveng Trident Steel
& others [2018] 5 BLLR 500 (LC).
An employee is protected in that he may freely exercise his rights, participate in proceed-
ings and take action against his employer without fear of being dismissed.
It has already been mentioned that the dismissal of an employee because of her preg-
nancy, intended pregnancy or any reason related to her pregnancy is automatically unfair
(see cases cited above).
If an employer unfairly discriminates (on the basis of race, gender, age, etc or any arbi-
trary ground) against an employee and, because of the discrimination, an employee is dis-
missed, the dismissal is automatically unfair. The emphasis is on unfair discrimination. Fair
discrimination, i.e. discrimination on valid grounds, is permissible. Section 187(2) spe-
cifically declares a dismissal fair if the reason for dismissal is based on the inherent require-
ments of a particular job or if an employee has reached the normal or agreed retirement
age. Such termination will not be considered an automatically unfair dismissal – see McInnes
v Technikon Natal & Others [2000] 6 BLLR 701 (LC); Biggs v Rand Water & Others (2003) 24
ILJ 1957 (LC); Raol Investments (Pty) Ltd t/a Thekwini Toyota v Madlala [2008] 6 BLLR 535
(SCA); Atkins v Datacentrix (Pty) & Others [2010] 4 BLLR 351 (LC); Department of Correctional
Services v POPCRU & Others [2013] 7 BLLR 639 (SCA); Rubin Sportswear v SACTWU & Others
[2004] 10 BLLR 986 (LAC); Evans v Japanese School of Johannesburg [2006] 12 BLLR 1146
(LC); TDF Network Africa (Pty) Ltd v Faris [2019] 2 BLR 127 (LAC).
If a business is transferred from one owner to another – and that implies one employer
to another – either section 197 or section 197A is applicable, depending on whether the
business is transferred as a going concern or in a state of insolvency. Contracts of employ-
ment are automatically transferred to the new employer and the new employer is required
to give the employees conditions of employment similar to those they previously enjoyed. If
the employment conditions are not substantially similar, the employee may elect to resign
under the cloak of a constructive dismissal. If it were found that the employee had indeed
been dismissed, it would constitute an automatically unfair dismissal – SAMWU v Rand
Airport Management Company (Pty) [2005] 3 BLLR 241 (LAC); Van der Velde v Business &
Design Software (Pty) Ltd (2) [2006] 10 BLLR 1004 (LC).
The Protected Disclosures Act of 2000 or the “Whistle-blower’s Act” allows employees to
make protected disclosures about corruption and other irregularities in the workplace with-
out fear of being subjected to an occupational detriment, that is, unfair treatment on
account of the disclosure. An employee who is exposed to an occupational detriment in
contravention of the Act has recourse against the employer. If the employee is dismissed for
having made a protected disclosure, the dismissal is automatically unfair – see Pedzinski v
Andisa Securities (Pty) [2006] 2 BLLR 184 (LC).
Dismissals 347
Other occupational detriments as a result of a protected disclosure, such as demotion,

non-promotion, suspension or other disciplinary action or a change in employment condi-
tions constitute unfair labour practices.
17.4 Date of dismissal (s 190)

Although the date of a dismissal is in the majority of cases obvious or can easily be deter-
mined, some uncertainty exists and employers and employees are not always sure about the
date of dismissal, for example, if an employee is summarily dismissed for misconduct at a
disciplinary hearing and some time later the dismissal is confirmed on appeal, which of the
two dates constitutes the date of dismissal? It is important to know the date of dismissal as
the employee has 30 days from the date of dismissal to refer a dispute to the CCMA or a
bargaining council.
In terms of section 190(1) of the LRA the date of dismissal is the earlier of the date on
which the contract of employment terminated and the date on which the employee left the
service of the employer. The dismissal date is thus the date on which the employee is
dismissed after the disciplinary hearing and not the date of the appeal hearing. (The
legislature, however, caters for a referral of the dismissal dispute 30 days after the appeal
outcome in section 191(1)(b)(i).)
Section 190(2) provides for the date of dismissal in the case of fixed-term contracts,
refusal to allow an employee to resume work, refusal to reinstate or re-employ and termin-
ation on notice. In the case of a fixed-term contract the date of dismissal is the date on
which the employer offered less favourable terms or the date the employer notified the
employee of its intention not to renew the contract. If the employer refuses to allow an
employee to resume work after a period of absence, the date of dismissal is the date on
which the employer first refused to allow the employee to resume work. Where an employer
refuses to reinstate or re-employ an employee, the date of dismissal is the date on which the
employer first refused to reinstate or re-employ that employee. If the employer terminates
an employee’s employment on notice, the date of dismissal is the earlier of the date on
which the notice expires and the date on which the employee is paid all outstanding salary.
17.5 Requirements for a fair dismissal (s 188)

An employer must prove that a dismissal (other than an automatically unfair dismissal)
relates to an employee’s conduct or capacity or is based on the employer’s operational
requirements and that a fair procedure was adopted before dismissing an employee.
The categories of dismissal, therefore, are:
• dismissal for misconduct;
• dismissal for incapacity or poor work performance;
• dismissal for the employer’s operational requirements.
Two requirements must be complied with in all of the above circumstances in order to
ensure the fairness of a dismissal: substantive fairness and procedural fairness. Where an
employee alleges an unfair dismissal the onus is on the employer to prove, on a balance of
probabilities, that the dismissal was fair.
If an employee claims that he was dismissed, but the employer contends that he was not,
the onus is on the employee to prove the existence of a dismissal. Once the existence of a
dismissal has been proved, the onus shifts to the employer, who must prove the fairness of
that dismissal (s 192).
17.5.1 Substantive fairness

Substantive fairness as a requirement for a fair dismissal can be described as a “valid and
fair reason”.
Valid reason refers to a lawful reason that will justify dismissal. The reason must be lawful
in accordance with common law, statute law, a collective agreement or the contract of
employment. Misconduct, incapacity and poor work performance constitute valid reasons
for dismissal if they are of a serious nature. The employer’s operational requirements are
also a valid reason for dismissal.
A valid reason is not per se fair. A fair reason means that, considering all the circumstances,
dismissal is the only appropriate sanction; no alternative sanction can be considered. It is
generally accepted that dismissal is justified in circumstances where the employment rela-
tionship has become intolerable or where the trust relationship between employer and
employee has irretrievably broken down.
The blameworthiness of the employee must be considered. In the event of misconduct
an employee is blameworthy because he has control over what he does and can decide
whether or not to commit an act of misconduct. In the case of incapacity or poor work per-
formance an employee is generally less blameworthy or entirely blameless – he cannot con-
trol an illness or other physical incapacity or his poor performance may be the result of no
or inadequate training by the employer.
The employer is required to act consistently in the application of its disciplinary rules,
without being rigid and inflexible. Like cases should be treated alike – not by reference to
the technical classifications of the relevant offences, but with regard to their substance, the
circumstances under which they were committed and the position of the offender. For
example, it will be unfair if an employer starts enforcing disciplinary rules without prior
warning to employees. Similarly, the employer is not allowed to act selectively or to discrim-
inate in respect of employees who are guilty of the same offence.
Before the employer decides on dismissal alternatives to dismissal should be considered. Is
dismissal the only possible sanction or will an alternative sanction be more appropriate in the
circumstances? Mitigating circumstances must be considered before deciding on a sanction.
When dismissal is decided upon, the employer must indicate whether it is a summary dis-
missal or one with a period of notice. This choice will largely depend on the disciplinary
code and the reason for the dismissal. Summary dismissal is dismissal without a period of
notice and is generally accepted in instances of serious misconduct. However, if mitigating
factors or the personal circumstances of the employee warrant it, the employer may decide
on dismissal with notice. In such a case the employer may decide to remunerate the worker
in lieu of notice. In the event of incapacity it seems fairer to dismiss an employee with
notice.
17.5.2 Procedural fairness

At common law no procedure was required before an employee was dismissed. Provided a
valid reason such as gross misconduct or poor performance existed dismissal was justified.
An employer could dismiss an employee even without disclosing the reason for dismissal
and affording the employee an opportunity to defend himself.
Under the LRA of 1956 the Industrial Court consistently required that an employer follow
a fair procedure before dismissing an employee (for misconduct or incapacity). An employer
was thus required to afford the employee an opportunity to state his case and to bring miti-
gating circumstances to the employer’s notice (in accordance with the audi alteram partem
rule). It became customary to conduct disciplinary hearings and, because of the Industrial
Court’s stringent requirements, these hearings developed into proceedings akin to a crim-
inal trial. An employee was served with a charge sheet, notified of his rights and, at the
hearing, allowed to call witnesses and to cross-examine witnesses called by management.
The chairperson was required to consider mitigating and aggravating factors before decid-
ing on a sanction. The employee was then afforded an opportunity to appeal to a higher
tier of management.
The 1995 LRA also requires a fair procedure, but propagates a less formal procedure. A
Code of Good Practice: Dismissal (Schedule 8) has been issued in terms of the LRA as a
Dismissals 349
guideline of inter alia what a fair procedure entails. Item 4 of the Code requires that the
employer investigate allegations of misconduct, but specifically states that the enquiry need
not be formal. Indeed, in Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others
[2006] 9 BLLR 833 (LC) the Labour Court confirmed that the “criminal model” of a dis-
ciplinary procedure is no longer applicable to internal disciplinary proceedings. An em-
ployer is merely required to conduct an investigation, give the employee and his
representative an opportunity to respond to the allegations and notify the employee of its
decision. The Code of Good Practice does not require an appeal hearing as an inherent
part of a fair procedure. However, it has become standard practice to afford employees the
right of appeal to a higher tier of management, a practice followed by most employers.
A fair procedure in essence entails two rules: the audi alteram partem rule in terms of
which the employee must be afforded an opportunity to respond to the allegations and the
nemo iudex in sua causa rule in terms of which the decision-maker must be an objective and
neutral person with no knowledge of the case before deciding the matter.
17.6 Dismissal for misconduct

Because misconduct is prevalent in every workplace and its consequences may have far-
reaching implications, an employer has to adopt measures to curb misconduct. This is done
by implementing disciplinary rules in the form of a disciplinary code or a code of conduct.
A positive approach to discipline is required rather than a punitive one. This means that
discipline should be aimed at corrective measures and should include counselling and
verbal and written warnings, referred to as progressive discipline. However, some forms of
misconduct are simply so serious that stringent measures have to be applied. This may
include dismissal.
As a general rule misconduct, or accumulated instances thereof, will be sufficiently serious
to justify dismissal if it renders the continued relationship between employer and employee
intolerable.
If the employee makes himself guilty of misconduct the employer will have to establish
whether the employee has a history of the same or similar type of misconduct before dis-
missal is justified. Dismissal for less serious instances of misconduct will be justified only if
the employee had in the past been found guilty of misconduct, received warnings and can
be shown to have been aware of the fact that a further infraction could result in dismissal.
It is only in circumstances where the employee is found guilty of misconduct of a very
serious nature or with a criminal element that summary dismissal is justified. Prior warnings
in such a case are generally not required. Instances that will justify summary dismissal with-
out prior warnings include theft, fraud and all forms of dishonesty, assault and intimida-
tion. The Code of Good Practice, in item 3(4), also recognises these forms of misconduct as
sufficiently serious to justify summary dismissal. For theft refer to Olkers v Monviso Knitwear
(Pty) Ltd (1988) 9 ILJ 875 (IC); SACCAWU & Another v The Clicks Organisation (Pty) Ltd
[1997] 2 BLLR 164 (IC); Komane v Fedsure Life [1998] 2 BLLR 215 (CCMA); Metcash Trading
Ltd t/a Metro Cash & Carry v Fobb & Others [1998] 11 BLLR 1136 (LC); Rustenburg Platinum
Mines Ltd (Rustenburg Section) v NUM & Others [2001] 3 BLLR 305 (LAC); Miyambo v CCMA
& Others [2010] 10 BLLR 1017 (LAC); Rainbow Farms (Pty) Ltd v CCMA & Others [2011] 5
BLLR 504 (LC); [2011] 5 BLLR 451 (LAC); James & Another v Eskom Holdings SOC & Others
(2017) 38 ILJ 2269 (LAC) For assault see Swanepoel v AECI Ltd (1984) 5 ILJ 41 (IC); County
Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC); SMCWU & Another v
Party Design CC (Doll’s Dairy) [2001] 6 BLLR 667 (LC); Raol Investments (Pty) Ltd t/a Thekwini
Toyota v Madlala [2008] 6 BLLR 535 (SCA). For intimidation refer to Kompecha v Bite My
Sausage CC (1988) 9 ILJ 1077 (IC); Mabinana & Others v Baldwins Steel [1999] 5 BLLR 453
(LAC); Adcock Ingram Critical Care v CCMA & Others [2001] 9 BLLR 979 (LAC); NUM v Black
Mountain Mining (Pty) Ltd & Others [2010]3 BLLR 281 (LC); National Democratic Change &
Allied Workers Union & Others v Cummins Emission Solutions (Pty) Ltd [2014] 6 BLLR 600 (LC);
National Sugar Refining & Allied Industries Union obo Mngomezulu v Tongaat Hulett Sugar Ltd
(Darnall) (2016) 37 ILJ 2441 (BCA). For fraud see BMW (South Africa) (Pty) Ltd v Van der Walt
[2000] 2 BLLR 121 (LAC); Vaal Toyota (Nigel) v Motor Industry Bargaining Council & Others
[2002] 10 BLLR 936 (LAC); City of Cape Town v SALGBC & Others [2011] 5 BLLR 504 (LC);
Workforce Group v McLintock & Others (2017) 38 ILJ 158 (LAC). For racial comments refer to
Rustenburg Platinum Mine v SA Equity Workers Association obo Bester & Others (2018) 39 ILJ
1503 (CC); SARS v CCMA & Others [[2017] 1 BLLR 8 (CC). For dishonesty refer to Depart-
ment of Home Affairs & Another v Ndlovu & Others (2014) 35 ILJ 3340 (LAC); Schwartz v Sasol
Polymers & Others (2017) 38 ILJ 915 (LAC); Kidrogen (Pty) Ltd v CCMA & Others (2018) 39 ILJ
2560 (LC).
There is no fixed rule regarding the number of warnings that must precede a dismissal.
The employer is, however, advised to adhere to its disciplinary code in this regard. The fact
that the required number of warnings may already have been given, does not necessarily
justify dismissal if a further infraction occurs: the prior warning may have lapsed, the rele-
vant breaches of a rule to which they pertain may not have been of a serious nature or the
final infraction may have been of a nebulous nature.
If the final act of misconduct is not in itself sufficiently serious so as to justify summary
dismissal, it is generally required that the various instances of previous misconduct must be
related, that is, of the same or a similar nature. But even in cases where the present and
previous instances of misconduct are unrelated, it may be possible to detect a general
pattern of misconduct, which may render the continued relationship intolerable. The
question, ultimately, is whether dismissal is appropriate in the circumstances.
A suspicion of serious misconduct is not sufficient to warrant dismissal. The employer,
however, is not required to prove the misconduct beyond reasonable doubt. It is sufficient
for the employer to have reason to believe, on a balance of probabilities, that a disciplinary
offence has been committed. The employer may take into account only those facts known
at the time of the dismissal.
An employer cannot dismiss an employee for refusing to commit some illegal act, for
example, a refusal to work overtime in excess of the prescribed hours. A dismissal must not
constitute a breach of the employment contract or of any agreement in place in the com-
pany. An unfair dismissal constitutes such a breach.
Based on what has been said, the requirements for a fair dismissal in the case of miscon-
duct may be summarised as follows:
• “Valid reason” means a lawful reason according to common

law, a contract of employment or an agreement (such as
theft, gross insubordination, assault).
• A lawful reason is not per se fair. A reason is fair only if a con-
tinued employment relationship is impossible. Other alterna-
tives must be considered; dismissal must be the last resort.
• Repeated incidents of misconduct are required before a dis-
missal is justified, unless the misconduct displays a criminal
element (such as fraud, assault or theft) or the misconduct
destroys the trust relationship between the employer and
SUBSTANTIVE employee.
FAIRNESS
• There is no fixed rule regarding the number of warnings
that must precede a dismissal, but warnings must be issued
for the same or related offences.
• The employer must act consistently, i.e. treat like cases alike.
• All circumstances in a given case must be considered, such
as the disciplinary record and length of service of the
employee, mitigating factors, the nature of the misconduct
and possible prejudice to the employer.
• The onus is on the employer to prove, on a balance of prob-
abilities, that the dismissal is fair in accordance with the facts
known to him.
Dismissals 351
Checklist
The following checklist may be used to determine whether the employer has sufficient
reason to dismiss an employee (see item 7 of the Code of Good Practice: Dismissal):
• Is a disciplinary rule in existence that governs the conduct complained of?
• Is the rule reasonable?
• Was the employee aware of the rule or should he reasonable have been aware of it?
• Was the rule breached?
• Was the employee aware of the consequences of a breach of the rule?
• Has the disciplinary code been consistently enforced?
• Is dismissal the appropriate sanction in the circumstances?
The summary of procedural fairness that follows reflects the elements of a fair procedure as
it was developed by the old Industrial Court and still applied by most employers, even
though the Labour Court, in terms of the 1995 LRA, supports a less formal procedure.
• The employee is to be notified of the allegations against him

and of what his rights at the hearing are.
• The disciplinary hearing should be held as soon as possible
after the incident, but the employee must be granted suffi-
cient time to prepare his case.
• At the hearing the employee has the right to state his case in
accordance with the audi alteram partem rule, the right to call
witnesses and the right to cross-examine witnesses called by
management.
• The employee also has the right to an interpreter and to be
represented or assisted by a co-employee.
• The chairperson must be a neutral person and must not
PROCEDURAL prejudge the case.
FAIRNESS • The employee must be informed of the final decision, the
sanction and the reasons therefor in writing.
• The employee must be informed of his right of appeal (if
company policy provides for an appeal).
• The employee must lodge his appeal within the time pre-
scribed by the disciplinary procedures.
• The employee enjoys the same rights at the appeal as at the
disciplinary hearing.
• The appeal chairperson must be someone other than the
person who chaired the disciplinary hearing and must con-
sider whether dismissal is the most appropriate sanction.
• The employee must be informed of the outcome of the
appeal.
17.7 Dismissal for incapacity

Traditionally “incapacity” refers to either ill health or poor work performance but, according
to the courts, “any condition or circumstance that renders an employee incapable of per-
forming his work” may constitute incapacity. In Armaments Corporation of South Africa (SOC)
Ltd v CCMA & Others [2016] 5 BLLR 461 (LC), for example, the withdrawal of a security
clearance in circumstances where such clearance was required for the job was found to be a
justifiable reason for dismissal. And, in Samancor Tubatse Ferrochrome v MEIBC & Others
[2010] 8 BLLR 824 (LAC) the employee’s incarceration and the commercial need to fill his
position was recognised as an “operational incapacity”.
Incompatibility or a “personality clash” between two employees can justify dismissal, pro-
vided that it can be proved that the disharmony was caused by one of the employees and
that remedial action was attempted – Hapwood v Spanjaard Ltd [1996] 2 BLLR 187 (IC);
Schreuder v Nederduitse Gereformeerde Kerk Wilgespruit & Others [1999] 7 BLLR 713 (LC); Jardine
v Tongaat Hulett Sugar Ltd [2002] 4 BALR 426 (CCMA); Jabari v Telkom SA (Pty) Ltd [2006] 10
BLLR 924 (LC); Van der Merwe v Agricultural Research Council [2013] 9 BALR 1012 (CCMA).
Ill health or injury and poor work performance still remain the best-known forms of in-
capacity. If an employee is not capable of doing the work because he lacks skills, knowledge
or ability and, therefore, does not meet the required performance standards he can be dis-
missed for poor work performance. An employer is entitled to set reasonable performance
standards and an employee is expected to meet those standards. For dismissal based on
poor work performance see inter alia Eskom v Mokoena [1997] 8 BLLR 965 (LAC); SACCAWU
v Pep Stores (1998) 19 ILJ 939 (CCMA); Buthelezi v Amalgamated Beverage Industries [1999] 9
BLLR 907 (LC); Crawford v Grace Hotel (2000) 21 ILJ 2315 (CCMA); General Motors (Pty) Ltd v
NUMSA obo Ruiters (2015) 36 ILJ 1492 (LAC).
If an employee is incapable of doing the work on account of poor health or injury he can
be dismissed for physical incapacity. See Davies v Clean Deale CC (1992) 13 ILJ 1230 (IC);
Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 15 ILJ 304 (LAC); Standard
Bank of South Africa v CCMA & Others [2008] 4 BLLR 356 (LC); IMATU obo Strydom v Witzen-
berg Municipality & Others [2012] 7 BLLR 660 (LAC); General Motors SA (Pty) Ltd v NUMSA
(2018) 39 ILJ 1316 (LC); Parexel International (Pty) Ltd v Chakane NO & Others (2018) 39 ILJ
644 (LC).
A dismissal on account of physical incapacity or poor work performance is different from
a dismissal for misconduct. A distinction is drawn between an employee who is unwilling to
perform (i.e. misconduct) and one who cannot perform (i.e. incapacity) since, in the latter
case, the employee is less blameworthy or blameless. However, it would be unfair to expect
an employer to keep an incapacitated employee on indefinitely. Before an employer con-
siders dismissing the employee it should make an attempt to accommodate the employee.
Attempts should be made to remedy the incapacity or incompetence and the employee
should be informed that his performance does not meet required standards. Should dismis-
sal prove necessary, it is suggested that a period of notice be attached to the dismissal.
The test for substantive fairness is whether the employer can fairly be expected to con-
tinue with the employment relationship, bearing in mind the merits of the case. Factors to
be considered include the nature of the incapacity or poor work performance; the extent
or degree of the employee’s inability to perform; the likelihood of improvement; the size
and possible effect on the employer’s operations; the effect on the welfare, safety and
morale of co-employees; the status of the employee, his service record and length of service;
the cause of the poor performance or incapacity; the possibility of transfer to another
position. In the case of poor performance regular assessments or appraisals are required.
If dismissal seems the only option, the employee must be afforded an opportunity to
defend himself and to provide reasons why he should not be dismissed. This can be done in
the form of a hearing.
Dismissals 353
The salient points relating to dismissal for incapacity can be summarised as follows:
• The test for substantive fairness is whether the employer can

fairly be expected to continue with the employment rela-
tionship, bearing in mind the merits of the case.
• Factors to be considered include
– the nature of the incapacity;
– the extent and degree of the employee’s inability to per-
form. In the case of poor performance, was the employ-
ee aware of the required standard of performance and
did he meet that standard?
SUBSTANTIVE – the likelihood of recovery from physical incapacity or
FAIRNESS improvement of poor performance (by making him
aware of the required standards, counselling and train-
ing and giving him an opportunity to meet the stand-
ard);
– the possible effect on the employer’s operations;
– the effect on the welfare, safety and morale of other
employees;
– the status of the employee, his service record and length
of service;
– period of absence in the case of physical incapacity. Is
the incapacity temporary or permanent, can the em-
ployee’s job be adapted or is an alternative job available?
– the cause of the incapacity or poor performance. An
investigation is required;
• Alcohol or drug addiction is to be treated as an illness and
not as misconduct.
• The onus is on the employer to ensure that he has taken

reasonable steps to assist the employee.
• The employer should consult with the employee about his
incapacity.
• Medical treatment or placement elsewhere in the company
PROCEDURAL should be considered.
FAIRNESS • Inform the employee of his poor performance and possible
consequences of non-improvement.
• Provide training or consider placement elsewhere.
• Before the employee is dismissed a hearing should be con-
ducted in order to afford him an opportunity to show why
he should not be dismissed. The employee may be assisted
by his union or a co-employee during the hearing.
Any person who, in the event of misconduct or incapacity, has to consider whether the
reason for dismissal is fair and/or whether the dismissal was effected in accordance with a
fair procedure, must take into account the Code of Good Practice: Dismissal, contained in
Schedule 8 to the LRA (see Appendix 1). Item 9 of the Code deals with poor performance
and items 10 and 11 with ill health or physical incapacity.
17.8 Dismissal for operational requirements (ss 189 & 189A)

Another substantive reason for dismissal is the operational requirements of the employer,
such as technological changes within the company which result in posts becoming redun-
dant, a downturn in the economy which necessitates retrenchments and the closure, reloca-
tion or sale and transfer of the business.
The procedure for a fair dismissal based on the operational requirements of the employer
evolved through decisions of the Industrial Court and has been incorporated in section 189
of the LRA of 1995.
The 2002 amendments to the Act brought about significant changes to retrenchment laws.
A new section 189A was inserted which applies to employers with more than 50 employees
in instances where the employer contemplates retrenching more than a prescribed number
of employees during a 12-month period. Section 189A allows employees and their unions to
elect between a strike or adjudication should they wish to challenge the substantive fairness
of the dismissal. Strike action is not permitted in the event of a procedural challenge.
Section 189 is applicable to so-called “minor” (or “small-scale”) retrenchments while
both sections 189 and 189A are applicable to “major” or “large-scale” retrenchments (some-
times also referred to as “mass dismissals”).
Section 189: When an employer contemplates dismissing one or more employees for rea-
sons based on its operational requirements consultation must take place. The hierarchy of
the consulting parties with whom the employer must consult is as follows: any person who
has been identified as the consulting party in a collective agreement; if there is no such
agreement, a workplace forum (if one has been established) and any registered trade union
whose members are likely to be affected by the proposed dismissals; if there is no workplace
forum, any registered union whose members are likely to be affected must be consulted; if
there is no such trade union, the employees likely to be affected or their representatives
nominated for that purpose must be consulted.
The employer must issue a written notice to the other consulting party, inviting it to con-
sultation. This notice is referred to as the “section 189(3) notice” and the employer is
required to disclose all relevant information in the notice, including, but not limited to:
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing the dismissals and the
reasons for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in which they are
employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take effect;
(f ) the severance pay proposed;
(g) any assistance that the employer proposes to offer to the employees likely to be dis-
missed; and
(h) the possibility of future re-employment of the employees who are dismissed.
(i) the number of employees employed by the employer;
(j) the number of employees that the employer has dismissed for operational require-
ments during the preceding 12 months.
Relevant information must be disclosed, unless such information is legally privileged, confi-
dential or relates to private personal information of an employee. Any dispute relating to the
disclosure of information must be referred to the CCMA for conciliation and, if necessary,
arbitration and the provisions of section 16 (disclosure to a majority union) apply mutatis
mutandis. An employer who refuses to disclose information must prove that the information is
not relevant.
Dismissals 355
The consulting parties must attempt to reach consensus on appropriate measures to

avoid or minimise the dismissals, to change the timing of the dismissals and to mitigate the
adverse effects of the dismissals. The parties must also endeavour to agree on the method
for selecting the employees to be dismissed and the severance pay for dismissed employees.
This is a consensus-seeking process in which the consulting parties are expected to partici-
pate in good faith – Viljoen v Johannesburg Stock Exchange Ltd (2017) 38 ILJ 671 (LC); AMCU
& Others v Bafokeng Rasimone Management Services (Pty) Ltd & Others (2017) 38 ILJ 931(LC);
AMCU & Others v Piet Wes Civils CC & Another (2017) 38 ILJ 1128 (LC); Piet Wes Civils CC &
Another v AMCU & Others (2019) 40 ILJ 130 (LAC); Woolworths (Pty) Ltd v SACCAWU &
Others (2018) 39 ILJ 222 (LAC); TWK Agri (Pty) Ltd v Wagner & Others (2018) 39 ILJ 797
(LAC); AMCU & Others v Tanker Services (Pty) Ltd (2018) 39 ILJ 2265 (LC).
The employer must allow the other consulting party an opportunity during consultation
to make representations about the issues under consultation. The employer must consider
the representations and furnish reasons when disagreeing with any of those proposals. If
representations have been made in writing the employer must respond in writing.
After consultation, the employer must select the employees to be dismissed in accord-
ance with the agreed selection criteria or, if no criteria have been agreed, criteria that are
fair and objective.
Section 189A: The thrust of section 189A is to give trade unions a choice between taking
strike action or referring a dispute to the Labour Court for adjudication if the substantive
fairness of the dismissals is being challenged; they cannot pursue both routes. The right to
strike in this context is limited to substantive issues only and does not apply to the em-
ployer’s failure to comply with a fair procedure. Furthermore, the right to strike does not
apply where the employer employs fewer than 50 employees or where the employer em-
ploys more than 50 employees, but contemplates dismissing less than the threshold number
during a 12-month period. Another significant feature of section 189A is that it allows for
CCMA facilitation to assist parties in the retrenchment exercise.
Section 189A is applicable to employers employing more than 50 employees and who
contemplate dismissing a number of employees for operational reasons. The provisions of
section 189A apply when the employer contemplates dismissing
• 10 employees where the employer employs 51 to 200 employees;
• 20 employees where it employs 201 to 300 employees;
• 50 employees where it employs more than 500 employees.
These thresholds apply for a period of 12 months. In other words, if the employer dismisses
the prescribed number of employees either at the same time or at different times during a
12-month period, section 189A applies. So, if a number of employees short of the prescribed
number are dismissed and a few months later more employees are dismissed so that the two
groups together exceed the threshold, the employer is subject to the provisions of section
189A.
Any of the consulting parties may request the CCMA to appoint a facilitator to assist the
parties in their consultations. The facilitator is appointed in terms of regulations issued by
the Minister and must conduct the facilitation in accordance with those regulations.
If a facilitator has been appointed and 60 days have lapsed since the date of the section
189(3) notice, the employer may give notice of termination of services in accordance with
the provisions of the Basic Conditions of Employment Act. In response to the notice to
terminate services the affected employees or registered union who have received the notice
may elect to strike or refer a dispute to the Labour Court. (Note that these provisions do
not require that the matter be conciliated first.) Once the employees or union have elected
one of the two options, the other option falls away. Thus, should the union elect to strike it
cannot at a later stage approach the Labour Court on the issue over which strike action was
taken. It is possible that an employer is hit by both a strike and a court case – the strike
called by the union and the court case by non-union members who do not participate in
the strike.
In circumstances where a facilitator has not been appointed a period of 30 days from the
date of the section 189(3) notice must lapse before a dispute is referred to conciliation.
Once the certificate of non-resolution has been issued or 30 days have lapsed since the
referral, the employer may give notice of termination. This in effect means that the em-
ployer will not be able to dismiss the employees before a period of 60 days has lapsed. The
union or affected employees may either give notice to strike or refer the dispute to the
Labour Court (if the dispute concerns substantive issues only). If the employer dismisses
the employees or gives them notice of termination before expiry of the 60 days, notice of a
strike may be given. See Steenkamp & Others v Edcon Ltd (2016) 37 ILJ 564 (CC).
The provisions relating to strikes found in sections 64 to 69 and 76 apply to strikes in this
context, with a few changes. For example, if a facilitator has been appointed, referral of the
dispute to conciliation is not required and in the case of a secondary strike the notice
period required before commencement of a strike is 14 days (and not seven days). In the
latter instance the employer who received a notice of a secondary strike may request the
Director of the CCMA to appoint a commissioner to conciliate the dispute. Such a request
or the appointment of a commissioner does not affect the right of the employees to strike
upon expiry of the 14-day period.
If the procedural fairness of the dismissal is challenged, a consulting party may approach
the Labour Court by way of an application for an order compelling the employer to comply
with fair procedures, interdicting the employer from dismissing the employees or directing
the employer to reinstate the employees until a fair procedure has been complied with. The
application must be brought within 30 days from the date the employer gave notice of ter-
mination or, if no notice was given, 30 days from the date of dismissal. A late application may
be condoned on good cause shown. The Court may make any appropriate order, including
an award of compensation, but may not make an order regarding disclosure of information
that has been the subject of an arbitration award. The Labour Court may not adjudicate a
dispute about the procedural fairness of a dismissal for operational requirements in any dis-
pute referred to it in terms of section 191(5)(b)(ii).
Severance pay: When an employee is dismissed for operational requirements, he must receive
a severance package in addition to the ordinary payments due to him. Originally the LRA,
in section 196, provided for severance pay. These provisions have been removed from the
LRA and can now be found in section 41 of the BCEA. Severance pay is equal to at least one
week’s remuneration for each completed year of continuous service with the employer. An
employee who unreasonably refuses to accept his employer’s offer of alternative employ-
ment within the company or with another employer forfeits his right to severance pay. An
employer may apply to the Minister for exemption from the payment of severance pay.
If there is a dispute about the entitlement to severance pay only, that dispute may be
referred to a bargaining council or, if there is no council with jurisdiction, to the CCMA for
conciliation and, if necessary, arbitration.
17.9 Disputes about unfair dismissals (s 191)

Unlike the 1956 Act, in terms of which it was possible to refer all disputes regarding alleged
unfair dismissals to the Industrial Court, the 1995 LRA provides for some dismissal cases to
be finalised by a bargaining (or statutory) council or the CCMA (s 191(5)(a)), whilst others
must be referred to the Labour Court (s 191(5)(b)).
A bargaining or statutory council with jurisdiction or the CCMA, if there is no council
with jurisdiction, is competent to finalise through arbitration a dispute relating to:
• dismissal for misconduct or incapacity;
Dismissals 357
• constructive dismissal;
• cases where the employee alleges that he does not know the reason for his dismissal;
• dismissal in the context of the non-renewal of a fixed-term contract;
• dismissal in the context of selective re-employment;
• cases where the employee alleges that the reason for the dismissal is that the employer
provided substantially less favourable employment conditions or circumstances after a
transfer in terms of sections 197 and 197A (unless the employee alleges that the dismissal
occurred for a reason contemplated in section 187);
• dismissal for operational requirements. In limited circumstances a council or the CCMA
has jurisdiction to entertain an operational requirements dismissal. Where only one em-
ployee is dismissed during a retrenchment exercise that employee may elect to have his
dismissal dispute arbitrated by a council or the CCMA or adjudicated by the Labour
Court. Or, where an employer employs fewer than ten employees the retrenched em-
ployees can opt for arbitration or Labour Court adjudication irrespective of the number
of employees who were dismissed;
• dismissal of a probationary employee must be referred for con-arb.
The Labour Court has exclusive jurisdiction to adjudicate the following alleged unfair dis-
missals (where conciliation has failed):
• an automatically unfair dismissal as contemplated in section 187 of the LRA;
• a dismissal based on the employer’s operational requirements. Note that where only one
employee is dismissed for operational requirements or where an employer employs fewer
than ten employees and some are dismissed, the retrenched employee or employees
have an election between arbitration or Labour Court adjudication;
• dismissal because of participation in an unlawful or unprotected strike;
• dismissal because the employee refused to join, was refused membership of or was expel-
led from a trade union party to a closed shop agreement; and
• dismissals (and unfair labour practices) that constitute occupational detriments as envis-
aged in the Protected Disclosures Act of 2000. A dismissal in this context is automatically
unfair.
The procedure for the resolution of a dispute regarding an unfair dismissal is as follows:
If there is a dispute about the fairness of a dismissal, the dismissed employee refers the
dispute to a council if the parties to the dispute fall within the registered scope of that
council or to the CCMA if no council has jurisdiction. The referral must be done in writing
within 30 days of the date of dismissal, but the council or CCMA may, on good cause shown,
condone a late referral (s 191(1)(3)). The employee must satisfy the council or the CCMA
that a copy of the referral has been served on the employer by e-mail, registered mail,
telegram, telex, telefax or by hand.
The council or the CCMA must attempt to resolve the dispute through conciliation with-
in 30 days of receiving the referral (the so-called 30-day conciliation period). The parties
can agree to extend the 30-day period (ss 191(4) & 135). At the conclusion of the concili-
ation process the conciliator must issue an outcome certificate, indicating whether the dis-
pute was resolved. If the dispute remains unresolved after conciliation or after expiry of the
30-day conciliation period, a certificate of non-resolution is issued (s 135(5)). The employee
can then refer the dispute to arbitration or to Labour Court adjudication, depending on
the nature of the dispute. In instances in which the Labour Court ordinarily has jurisdiction
the parties may agree in writing to have their dispute arbitrated (ss 133(2)(b) & 141).
Referral to arbitration or to the Labour Court must be filed within 90 days from the date of
the outcome certificate. Condonation for a later referral may be granted on good cause
shown (ss 136(1) & 191(11)).
Despite the fact that a council or the CCMA has jurisdiction to finalise certain dismissal
disputes by way of arbitration, the Director of the CCMA must, on application, refer the
dispute to the Labour Court if deemed appropriate. This will be done after the Director has
considered, inter alia, the complexity of the matter and the parties to the dispute and the
conciliating commissioner have submitted representations. The Director’s decision is final
and binding (s 191(6)–(10)).
In any proceedings concerning a dismissal the employee must prove the existence of a
dismissal. Once this has been established, the employer must prove that the dismissal was
fair (s 192).
The 2002 amendments added two new dispute resolution processes aimed primarily at the
quick resolution of a dispute: con-arb (s 191(5A)) and pre-dismissal arbitration (s 188A).
The “pre-dismissal arbitration” has been renamed “inquiry by an arbitrator” in the 2014
amendments.
Con-arb is a fusion of the conciliation and arbitration processes, meaning that, where
conciliation fails the dispute is immediately arbitrated. Con-arb is compulsory in disputes
concerning the dismissal of a probationary employee and unfair labour practices in the
context of probation. Con-arb may also be used in other dismissal disputes that are arbi-
trable if the parties do not object thereto.
Where an employer brings allegations of misconduct or incapacity against an employee
the process of “inquiry by an arbitrator” can be used instead of summoning the employee to
a disciplinary hearing. The inquiry by an arbitrator in effect takes the place of the disciplinary
hearing. The idea is to circumvent the protracted and time-consuming processes of internal
disciplinary and appeal procedures and thereafter conciliation and arbitration and get a
final outcome on the allegations against the employee much sooner.
An inquiry by an arbitrator can be conducted only with the consent of the employee
concerned. The employer is required to advise the employee of the allegations against him
first and then seek the employee’s consent. If the employee consents, the employer requests
the CCMA (or a council) to appoint an arbitrator to conduct an inquiry into the allega-
tions. An employee who earns in excess of the BCEA threshold may in his contract of
employment consent to an inquiry by an arbitrator.
When the employer approaches the CCMA to appoint an arbitrator the prescribed form
(Form 7.19), signed by both the employer and the employee, must be filed with the CCMA
and the employer must pay the prescribed fee. Upon receipt of the form and payment the
CCMA will appoint an arbitrator to conduct the inquiry. Councils have their own forms and
fees.
The inquiry conducted by the arbitrator takes the form of an arbitration. For a detailed
discussion of the process see chapter 19.
The following diagrams are provided to illustrate the procedures to be followed for dis-
1
missals based on different grounds:
________________________
1 These diagrams are contained as flow diagrams 10, 11, 12 and 13 of Sch 4 of the LRA. Sch 4, however,
does not have the force of law and the diagrams therein are intended only to provide guidance and
assistance to parties involved in a dispute. The diagrams have been slightly adapted.
Dismissals 359
AUTOMATICALLY UNFAIR DISMISSALS AND DISMISSALS FOR

2
OPERATIONAL REQUIREMENTS
Order, for example reinstatement,

re-employment or compensation and,
in addition, any other appropriate
order
Labour Court
Referral to Labour Court

90 days
No resolution
Conciliation
Council CCMA
30 days Date of dismissal 30 days
DISMISSAL FOR MISCONDUCT OR INCAPACITY
Award
14 days
Arbitration
Referral to arbitration
90 days
No resolution
Conciliation
Council CCMA
________________________
2 Keep in mind that some operational requirement dismissals can be arbitrated by a council or the
CCMA. Where only one employee is dismissed during a retrenchment exercise or when some employ-
ees of an employer with less than ten employees are retrenched, they can elect between arbitration or
Labour Court adjudication. If they elect arbitration they have to refer the dispute within 90 days after
conciliation to the council or CCMA for arbitration. A council or the CCMA can order reinstatement,
re-employment or compensation, but cannot make any additional appropriate order.
UNFAIR DISMISSAL
Unprotected strikes and reasons related to closed shop agreements
Order, for example reinstatement,

re-employment or compensation
Labour Court
Referral to Labour Court

90 days
No resolution
Conciliation
Council CCMA
17.10 Remedies for unfair dismissal (ss 193–195)
• an order for reinstatement

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

may be ordered. Reinstatement means the restoration of the employment contract; the
dismissed employee is returned to the position he occupied before the dismissal. Re-
employment implies that the contract terminated on the date of dismissal and a new con-
tract commences on the date of re-employment. An employee may be re-employed in the
position he held before the dismissal or in any other reasonably suitable position and on
any terms.
The courts have consistently held that reinstatement is the primary remedy in instances
where a dismissal is found to have been substantively unfair, unless the employee does not
want to be reinstated or re-employed, where a continued employment relationship is not
possible or where it is not practicable to reinstate or re-employ the employee (s 193(2)), in
which case compensation may be ordered. See in this regard Director General: Office of the
Premier, Western Cape v SA Medical Association obo Broens (2011) 32 ILJ 1077 (LC); Piet Wes
Civil CC v AMCU & Others [2018] ZALAC 18 (LAC).
Reinstatement or re-employment cannot be coupled with an order of compensation; it is
one or the other. In Equity Aviation Services (Pty) Ltd v CCMA & Others [2008] 12 BLLR 1129
(CC) the Constitutional Court confirmed that re-instatement and compensation are “in the
alternative and mutually exclusive”.
Dismissals 361
Reinstatement or re-employment may be ordered retrospectively, i.e. the court or the

arbitrator determines the date from which the reinstatement or re-employment is to take
effect, but such date may not be earlier than the date of the dismissal (s 193(1)) – Whall v
BrandAdd Marketing (Pty) Ltd [1999] 6 BLLR 626 (LC); NUM & Others v RSA Geological Ser-
vices & Others [2004] 1 BALR 1 (ARB); NUMSA & Others v Fibre Flair CC [2000] 6 BLLR 631
(LAC).
If a dismissal was only procedurally unfair, reinstatement or re-employment is not a com-
petent remedy and only compensation can be ordered (s 193(2)) – see Volkswagen SA (Pty)
Ltd v Brand NO & Others [2001] 5 BLLR 558 (LC). However, it is at the discretion of the
court or the arbitrator to decide whether to order compensation at all – see Johnson &
Johnson (Pty) Ltd v CWIU & Others [1998] 12 BLLR 1209 (LAC); Alpha Plant and Services (Pty)
Ltd v Simmond & Others [2001] 3 BLLR 261 (LAC); Parry v Astral Operations [2005] 10 BLLR
989 (LC); Basson v Cecil Nurse (Pty) Ltd [2001] 3 BLLR 321 (LC); Dr D C Kemp t/a Centralmed
v Rawlins [2009] 11 BLLR 1027 (LAC).
If a dismissal is automatically unfair or if a dismissal based on the employer’s operational
requirements is found to have been unfair, the Labour Court may in addition make any
other order that it considers appropriate in the circumstances. The court may, for example,
issue an interdict in the case of discrimination, compelling the employer to stop discrimina-
tory practices. The interdict is then issued in addition to reinstatement, re-employment or
compensation.
The amount of compensation ordered by a court or arbitrator must be just and equitable
in the circumstances, but may not exceed the equivalent of 12 months’ remuneration (or
24 months in the case of an automatically unfair dismissal). The employee’s rate of remu-
neration on the date of dismissal is used as the basis to calculate the amount of compensa-
tion (s 194).
An order or award of compensation is in addition to and not a substitute for any other
amount to which the employee is entitled in terms of any law, collective agreement or con-
tract of employment (s 195). An arbitrator may, for example, order an employee to pay
compensation to an unfairly retrenched employee, as well as severance pay and other
outstanding statutory payments; the compensation does not replace the other payments.
17.11 Transfer of the contract of employment (ss 197 & 197A)

Section 197 provides that whenever a business or part of a business is sold as a going con-
cern, the new employer is automatically substituted in the place of the old one. The meaning
of “a going concern” was analysed in NEHAWU v University of Cape Town & Others (2003) 24
ILJ 95 (CC); Aviation Union of SA v SA Airways (Pty) Ltd & Others (2011) 32 ILJ 2681 (CC);
Krishna v University of KwaZulu-Natal (2012) 33 ILJ 1688 (LC); Enviroserv Waste Management v
Interwaste (Pty) Ltd t/a Interwaste Environmental Solutions & Others (2016) 37 ILJ 959 (LC);
Kruger & Others v Aciel Geomatics (Pty) Ltd (2016) 37 ILJ 2567 (LAC); Tasima (Pty) Ltd v Road
Traffic Management Corporation & Others (2017) 38 ILJ 385 (LC).
When a going concern is transferred to a new owner, and thus a new employer, all the
employment rights and obligations of employees pass over automatically as well. So do
collective agreements and arbitration awards that were applicable to the old employer –
High Rustenburg Estate (Pty) Ltd v NEHAWU obo Cornelius & Others (2017) 38 ILJ 1758 (LAC).
The effect of these provisions is that the old employer is not required to seek the em-
ployees’ consent before their contracts are transferred, neither does it have to retrench
them. The employment contracts migrate automatically and no dismissals are deemed to
have occurred.
The new employer is not obliged to come up with an exact replica contract. It is suffi-
cient if the new employer employs the employees on terms and conditions “that are on the
whole no less favourable to the employees” than the terms and conditions previously
enjoyed. Where employment conditions are regulated by a collective agreement, the
agreement remains in force. Transfers to other pension, provident and retirement funds
are permitted.
The parties may vary the transfer terms by agreement. Either the old employer or the
new one or the old and new employer acting jointly, on the one hand, and the union,
workplace forum or other consulting party (as in s 189(1)) on the other, may reach an
agreement to vary the default provisions on the transfer of rights and obligations. These
variations do not have to be in writing or in the form of a collective agreement; they may be
done verbally.
Where an employee is transferred under “conditions of work substantially less favourable
to the employee than those provided by the old employer”, the employee may terminate
the contract and claim constructive dismissal. Where the new employer provides the same
or equivalent terms and conditions, the employee who is unwilling to be transferred has
only one route to follow: resignation on notice.
The old and new employers are obliged to settle a valuation of accrued employee entitle-
ments, to advise employees accordingly and to take steps to ensure that those entitlements
are adequately protected in future.
The old and new employers are required to agree on the value of accrued leave pay, sev-
erance pay that would have been payable in the event of a retrenchment and other accrued
entitlements, such as bonuses and commission. The value of these entitlements is calculated
as at the date of transfer. The old and new employers must further agree who would be
liable for these amounts. Full disclosure of the value of the entitlements and the employer
who is liable for them is required to all transferring employees.
In addition, the old employer must take any other measures that may be reasonable in
the circumstances to ensure that adequate provision is made for any obligation that may
arise for the new employer in respect of the valued entitlements. This could, for example,
include insurance against the new employer going insolvent.
If the old employer fails to take all the steps required by these provisions, it will for a
period of 12 months after the date of transfer remain liable in solidum with the new employer
for all entitlements due in the event of later retrenchments or the new employer’s subse-
quent liquidation.
Section 197A was inserted into the LRA in 2002 and provides for the transfer of employ-
ment contracts in cases of insolvency.
In terms of section 38 of the Insolvency Act contracts of employment terminate upon the
insolvency of the employer. Section 197A overrides the effects of the Insolvency Act.
When an insolvent business is transferred subject to a scheme of arrangement, then,
unless otherwise agreed in terms of section 197(6):
• the new employer is automatically substituted in the place of the old employer in all
employment contracts in existence at the time of the old employer’s winding-up or seques-
tration;
• all the rights and obligations between the old employer and his employees at the time of
the transfer remain rights and obligations between them;
• anything done before the transfer by the old employer in respect of his employees will be
considered to have been done by the new employer; and
• the transfer does not interrupt the employee’s continuity of employment and employ-
ment continues with the new employer as if with the old one.
The provisions found in section 197 relating to the provision of conditions of employment
that are not less favourable, transfer to other pension, provident or retirement funds and
the transfer of collective agreements and arbitration awards to the new employer are applic-
able where contracts of employment are transferred in the event of insolvency.
Dismissals 363
Questions
Question 1
1.1 Define a “dismissal” in terms of section 186(1) of the LRA. (6)
1.2 What is the test for establishing whether a dismissal has taken place? (5)
Hint: NULAW v Barnard NO & Another [2001] 9 BLLR 1002 (LAC); Ouwehand v Hout Bay
Fishing Industries [2004] 8 BLLR 815 (LC); Marneweck v SEESA Ltd [2009] 7 BLLR 669 (LC);
Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC); NUMSA & Others v Abancedisi
Labour Services [2013] 12 BLLR 1185 (SCA); Kukard v GKD Delkor (Pty) Ltd [2015] 1 BLLR 63
(LAC).
Question 2
Name and discuss the requirements for a fair dismissal. (20)
Question 3
Discuss automatically unfair dismissals. Include in your answer also the remedies for auto-
matically unfair dismissals. (20)
Hint: See ss 187, 193 & 194 of the LRA.
Question 4
Assume that an employee has been charged with and convicted of theft in a criminal court.
Should an employer conduct a disciplinary hearing before dismissing such an employee?
Motivate your answer by referring to decided cases. (10)
Hint: See Sekwati v Masiya & Others (2011) 32 ILJ 2219 (LC); Nyalunga v PP Webb Construction
(1990) 11 ILJ 819 (IC); Olkers v Monviso Knitwear (Pty) Ltd (1988) 9 ILJ 875 (IC).
Question 5
What is constructive dismissal? Explain by referring to decided cases. Include in your
answer the remedies available to an employee who has been constructively dismissed. (20)
Hint: See Halgreen v Natal Building Society (1986) 7 ILJ 769 (IC); Howell v International Bank of
Johannesburg Ltd (1990) 11 ILJ 791 (IC); Ndebele v Foot Warehouse (Pty) Ltd t/a Shoe Warehouse
(1992) 13 ILJ 1247 (IC); Amalgamated Beverage Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232
(LAC); Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC); WL Ochse
Webb & Pretorius (Pty) Ltd v Vermeulen [1997] 2 BLLR 124 (LAC); Quince Products CC v Pillay
[1997] 12 BLLR 1547 (LAC); Van der Riet v Leisurenet Ltd t/a Health and Racquet Club [1998]
5 BLLR 471 (LAC); Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC); CEPPWAWU & Another
v Glass & Aluminium 2000 CC [2002] 5 BLLR 399 (LAC); SA Police Service v Safety & Security
Sectoral Bargaining Council & Others (2012) 33 ILJ 453 (LC); Value Logistics Ltd v Basson &
Others (2011) 32 ILJ 2552 (LC); Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & Others
(2012) 33 ILJ 363 (LC); Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA); Strategic
Liquor Services v Mvumbi NO & Others [2009] 9 BLLR 847 (CC); Regent Insurance Co Ltd v
CCMA & Others (2013) 34 ILJ 410 (LC); National Health Laboratory Services v Yona & Others
(2015) 36 ILJ 2259 (LAC); Niland v Ntabeni NO & Others (2017) 38 ILJ 1686 (LC); Billion
Group (Pty) Ltd v Ntshangase & Others (2018) 39 ILJ 2516 (LC). See also ss 186, 193 & 194 of
the LRA.
Question 6
Explain whether the following circumstances meet the requirement of substantive fairness:
6.1 An employee in a liquor store has a history of drinking on duty. After several verbal
warnings and counselling, with no success, a final written warning was issued and is
still valid. He is again caught drinking during working hours and is dismissed. The
employer’s code of conduct provides for summary dismissal in the case of drinking
on duty, but because the temptation to drink is so great in a liquor store, the em-
ployer has adopted the practice of warning employees once or twice before dismiss-
ing them for this type of misconduct. (5)
6.2 In terms of a company rule employees were required to clock out when they went on
lunch and clock in upon their return. This rule was, however, not rigidly enforced
and after some time was no longer applied. This situation was accepted by manage-
ment and for a period of approximately ten months the employees did not clock in
or out over the lunch period. One Monday two employees arrived at their work sta-
tions ten minutes late after their lunch break. Both employees were charged with be-
ing late for work and with failure to comply with a company rule, namely to clock in
and out over lunch. Both were dismissed for not obeying this company rule. (5)
6.3 An employee has been in the employ of a company as a driver for the past 11 years.
He has always been considered a good driver and a reliable worker. Over the past
three months, however, he has caused two accidents and has received three sum-
monses for traffic violations. Upon investigation management discovers that the
driver’s eyesight has deteriorated to the extent that he cannot see further than 15 cm
ahead of him. Management thus believes that he cannot possibly be kept on as a
driver and dismisses him. (5)
6.4 An employee (A) was charged with assaulting a fellow worker (B). During the inves-
tigation of the incident management discovered that the assault was the result of B
having insulted A’s race and religion and having threatened to rape his daughter if A
refused to pay “protection money” to B. Although management was sympathetic to
the situation A found himself in, it was stressed that assault under any circumstances
whatsoever would not be tolerated and A was dismissed. (The company’s code of con-
duct provided for dismissal in the event of assault.) (5)
6.5 Peter was one of ABC Company’s longest-serving employees, having worked for the
company for 15 years. He was observed by a colleague surfing the Internet on his
work computer during working hours, downloading child pornography and dissemin-
ating it to his colleagues. An investigation was launched and the company’s IT specialist
discovered Peter’s numerous visits to unsavoury websites. When confronted, Peter
vehemently denied the accusations. He was nevertheless summoned to a disciplinary
hearing and subsequently dismissed. (5)
Question 7
Explain whether the following circumstances meet the requirement of procedural fairness:
7.1 Management discovered that 20 tyres had disappeared from the warehouse. Upon
enquiry an employee admitted to having taken them and was summarily dismissed for
theft without a disciplinary hearing. The employee, however, had received the per-
mission of his supervisor to take the tyres because they were rejects – a fact of which
management was unaware. (5)
7.2 An employee made himself guilty of fraud. When his fraud was discovered by the pro-
duction manager of the company, he was informed of a disciplinary enquiry to be
held in the following manner: “You are dismissed for fraud with immediate effect, but
a hearing will be conducted tomorrow and you may attend if you so wish”. The discip-
linary hearing was duly held the following day, but the employee did not attend and
in his absence the dismissal was confirmed. (5)
7.3 An employee was informed of a disciplinary hearing to be held at which hearing a
charge of gross insubordination against him would be investigated. At the hearing
two days later management presented its case, but the employee was not afforded an
opportunity to state his case and when he asked to have a co-worker present as his
representative his request was denied. He was found guilty and dismissed. He was
Dismissals 365
informed of his right to appeal and submitted his grounds for appeal within 24 hours.
Before the appeal hearing was convened, however, management was informed by its
legal counsel that the procedures followed during the disciplinary hearing were in-
correct and was advised to rectify the situation. Two days later the appeal hearing was
conducted and the employee was informed that he would have an opportunity to
present his case and would be able call a co-worker as his representative. (5)
7.4 A worker had received several verbal warnings for poor work performance. When his
supervisor again complained about his performance, an investigation was launched
and it was found that he had had no formal training and lacked the skills to perform
the tasks given to him. The employee was then transferred to a different department,
given another job and received on-the-job training for two weeks. When his perform-
ance still did not meet the required standards, he was called in by the supervisor and
summarily dismissed. (5)
7.5 A sales representative consistently failed to meet his monthly sales targets over a
period of three years. He was counselled for poor work performance and issued with
two written warnings. When he once again failed to meet his sales targets in the first
month of his fourth year of employment the company convened a formal poor-
performance hearing. The employee was asked to show cause why he should not be
dismissed, but he was not allowed to have a fellow employee represent him at the
hearing. He was dismissed. (5)
Question 8
Julia was an employee at The Steak Ranch. On two occasions she had attempted to steal
steaks, but each time she was stopped by the manager before she could remove the meat.
On both occasions she received verbal warnings. On a third occasion she attempted to steal
sauces which were served with steaks. The sauces were specialities of this restaurant and the
recipes thereof were kept secret at all times. When the manager questioned her, she admit-
ted guilt and was dismissed without a disciplinary hearing. When she objected to her dis-
missal because of the absence of a hearing, the manager argued that a hearing would have
made no difference since she had already admitted guilt.
8.1 Is Julia’s dismissal fair or unfair? Explain and refer to decided cases to substantiate
your argument. (20)
8.2 Assume that Julia’s dismissal was unfair. Would you order reinstatement or would an
award of compensation be a more appropriate remedy? Motivate your answer. (7)
Question 9
Seaview Investments (Pty) Ltd employs 177 employees. Due to financial difficulties the com-
pany is contemplating the retrenchment of 20 employees across all occupational levels. The
majority of employees below supervisory level belong to FIWU, a registered trade union.
Some of the union members may be affected by the retrenchments, as well as supervisory
and managerial staff.
9.1 Which provisions of the LRA are applicable in these circumstances? (2)
9.2 Is the company compelled to consult or negotiate about the pending retrenchments?
If so, explain who must be consulted. (5)
9.3 What information is the employer required to disclose, to whom must it be disclosed
and what format should such a disclosure take? (12)
9.4 Discuss in detail the process that must be followed before the affected employees can
be dismissed. (20)
9.5 Explain what the employees and/or the union can do if they wish to challenge (a)
the substantive fairness of the dismissals; and (b) the procedural fairness of the
dismissals. (20)
9.6 Assume that the company dismissed five employees in a first round of retrenchments
and five months later another 13 employees were dismissed. Which provisions are
applicable? (2)
9.7 Assume that the company retrenched only eight employees in total. Which provisions
are applicable? (2)
Question 10
Assume a number of employees had to be retrenched because their employer was experi-
encing financial difficulties.
10.1 Discuss which payments the employer has to make to these employees. (5)
10.2 Assume that the employer failed to pay severance packages to these employees. They
believe they are entitled to severance pay and declare a dispute. Discuss the proced-
ure to be followed in order to have the dispute resolved. (5)
Question 11
Some dismissal disputes must be arbitrated, whilst others must be adjudicated by the Labour
Court once conciliation has failed. Study the following situations and then (a) identify the
nature of the particular dismissal dispute; and (b) explain the dispute resolution procedure
for each of the disputes:
11.1 Employer A treats employee X very poorly by making him work long hours, withdraw-
ing his transport allowance and requiring him to perform tasks left unfinished by a
fellow employee. After many months of this treatment X resigns because, according
to him, he can no longer work for A who is making his working life very difficult.
There is no bargaining council in the sector where A’s company is situated. (5)
11.2 Employer A is a manufacturer of car parts. A terminates the services of employee X
because he does not agree with X’s religious convictions. A explains to X that he
cannot work with a person of X’s faith and gives X one month’s notice pay. A’s
company falls within the scope of registration of the Metal and Engineering Indus-
tries Bargaining Council (MEIBC). (5)
11.3 Employer A has to retrench ten employees because his company is experiencing
financial difficulties. On the last day of the month A calls the employees to his
office, explains the situation to them, terminates their services and gives them two
weeks’ notice pay. There is no bargaining council. (5)
11.4 The Department of Labour as employer summarily dismissed employee X for theft
and fraud because X had allegedly embezzled money and then made incorrect
entries in the financial statements to hide his theft. When X tried to explain that he
had been on leave at the time the theft occurred, his Head of Department simply
instructed X to leave the workplace. (5)
11.5 A policeman is dismissed for dereliction of duty. He was, however, on sick leave at
the time SAPS alleges that he neglected to perform his duties. (5)
11.6 Mr A is dismissed when his employer, an insurance company, discovers that he is
gay. The employer argues that A could cause embarrassment in the workplace and
with clients and, therefore, that the dismissal is justified. There is no bargaining
council. (5)
11.7 Ben had 25 years’ service at Cardex Publishing House and was two years away from
retirement when his employer retrenched him. A week after Ben’s retrenchment
the Manager of Cardex appointed his nephew of 22 in the position Ben used to
hold. Ben then claimed that his retrenchment was unfair because the employer
wanted to get rid of him based on his age and nepotism. There is no bargaining
council. (5)
Dismissals 367
11.8 Althea was an educator (teacher) at a public school. She was dismissed for allegedly
having molested young boys in her class. The person who chaired her disciplinary
hearing, however, had lost sight of the fact that she taught at a girls’ school. Althea
believes her dismissal was unfair and declares a dispute with her employer, the
Department of Education. (5)
11.9 Jonas was on probation for six months as a newly appointed electrician at Blitz Elec-
trical Services CC. Since his appointment he struggled to understand the work and
often did his job incorrectly. After some counselling his performance did not
improve and in his fifth month of employment the manager dismissed him. The
Electrical Bargaining Council has been registered for the sector and area in which
Blitz conducts its business. (5)
11.10 Employee X works at VW in Uitenhage. The company has a strict policy against
employees misusing the Internet and sending private e-mails to friends and col-
leagues. X’s girlfriend is in Cape Town and he often phones her and sends her
e-mails. When the company discovers that X is in the habit of downloading porno-
graphic material from the Internet and sending it to his girlfriend by e-mail X is
dismissed without a hearing. (5)
Question 12
Refer to each of the situations in question 11. Assume that each of the dismissals was unfair.
12.1 Identify the main reason for the unfairness of each of the dismissals. (10)
12.2 Explain in each instance which remedy would be the most appropriate. (20)
Question 13
Joshua was appointed as a computer programmer in the IT Department of Lexus (Pty) Ltd.
Before his appointment he had been working as a computer programmer for another
company for four years. When he commenced duties at Lexus he was instructed to attend
training one day a week for three months. He was also asked to draw up a list of all func-
tions of programming that he had knowledge of. When he had completed the list, the
trainer noticed that, because of his experience, Joshua could perform all tasks covered by
the training. He was nevertheless expected to attend the training.
Two months after Joshua’s appointment his supervisor was informed that he often
missed the training sessions. At the same time the supervisor became aware that Joshua
often took sick leave. He did, however, submit medical certificates. Joshua was counselled
and his performance was monitored. The supervisor discovered that Joshua often neglected
to perform all the tasks he was responsible for. In addition, he often left the office without
permission and spent considerable time talking to friends on the telephone.
On the second last day of his fourth month of employment Joshua arrived at work late,
informed his supervisor that he was feeling ill and wanted to see a doctor. He promised to
return to work after his visit to the doctor because he had many tasks to complete as it was
month-end. He went to the doctor, but did not return to work. For the next ten days Joshua
did not show up at work and did not contact his employer at all. Because the employer did
not know where Joshua was, he was charged with gross negligence in not having performed
his duties and absence without permission or a valid reason. The charge sheet and a notice
to attend a disciplinary hearing were sent to his address by registered mail and a copy
thereof was delivered to his home.
The disciplinary hearing was duly conducted and Joshua was in attendance, represented
by a shop steward of his union. His defence to the charge of gross negligence was that he
had not received adequate training and, therefore, could not to do the job. Regarding his
absence, Joshua explained that he had been ill and spent the time with his family in a
neighbouring town. Joshua was found guilty of gross negligence because he had simply
failed to perform certain tasks. He was also found guilty of absence without leave because
he could not produce a medical certificate for the period of his absence. He was dismissed
because, in terms of the company’s disciplinary code, absence of four days and more would
be regarded as AWOL and constituted a dismissible offence. His dismissal was confirmed on
appeal two weeks later. After the appeal hearing Joshua visited his supervisor to collect his
last pay cheque and then explained that he was HIV positive, which causes different ill-
nesses (the reason for his regular sick leave) and that the week of his absence was spent
with a traditional healer.
13.1 Explain in detail whether or not Joshua’s dismissal was fair. (20)
13.2 Joshua believes his dismissal was unfair. Explain the dispute resolution procedure he
can follow to have the dispute resolved. (5)
13.3 Discuss the remedies available to an employee who has been unfairly dismissed and
then briefly explain which of these remedies would be the most appropriate in
Joshua’s case if his dismissal was found to be unfair. (10)
Question 14
Susan was employed as a lecturer by a university in terms of seven successive fixed-term
contracts. She then applied for one of several permanent positions. Susan was unsuccessful,
but was offered a further fixed-term contract. She rejected the offer, claiming that she had
reasonably expected to be appointed on a permanent basis and that the university’s failure
to appoint her constituted a dismissal in terms of section 186(1)(b) of the LRA. Advise
Susan as to whether she was entitled to permanent employment and decide whether she
was in fact dismissed. (12)
Hint: See ss 186(1)(b) & 198B of the LRA.
Question 15
Jane, a travel consultant, fell pregnant. Her employer agreed to her taking one month’s
leave after her confinement. She gave birth to twins. The twins were in a poor state of
health and Jane requested another month’s leave to attend to them. The company declined
her request, but was prepared to grant her an extra two weeks’ leave. She declined the offer
and her services were terminated. Jane approached the Labour Court for relief, contending
that her dismissal was automatically unfair in terms of section 187(1)(e) of the LRA because
she had been dismissed for reasons related to her pregnancy. The employer argued that
Jane’s dismissal was in no way linked to her pregnancy. Decide whether Jane’s dismissal was
automatically unfair. (8)
Hint: See De Beer v SA Export Connection CC t/a Global Paws [2008] 1 BLLR 36 (LC).
Question 16
The Department of Correctional Services has a dress code for all its employees and expects
strict adherence to the policy. In terms of the code all male employees are expected to cut
their hair in the typical “short, back and sides” military style, while female employees may
have any hairstyle as long as they tie their hair up to look neat and tidy at all times. Four of
the male employees wore dreadlocks and when they were instructed to cut their hair, they
refused. After protracted discussions and a few warnings they were called to disciplinary
hearings and dismissed for refusing to obey a lawful instruction.
16.1 Decide whether the dismissals were fair or not. (8)
16.2 Assume the dismissals were unfair. What would the most appropriate remedy be in
the circumstances? (3)
Hint: Department of Correctional Services & Another v POPCRU & Others [2012] 2 BLLR 110
(LAC).
Dismissals 369
Question 17
Dorothy was employed as an educator her entire adult life. She retired when she reached
the age of 65 years (the retirement age set by the Department of Education). She then took
up employment with the Ubuntu Primary School, a private school. At the time of her
appointment the school had no retirement policy in place and her contract of employment
did not refer to a retirement age. Three years after her appointment the school imple-
mented a retirement policy. In terms of the policy the mandatory retirement age for perma-
nent employees was 65, but those employees already older than 65 would remain in service,
on fixed-term contracts, until the age of 68. Dorothy was already 69 when the policy was
introduced. She received a letter from the school notifying her that her employment would
be terminated at the end of the next school term. Does the termination of Dorothy’s ser-
vices constitute a dismissal and, if it does, is it automatically unfair? (10)
Hint: See s 187(1)(f) & 187(2)(b) of the LRA. See also Rubenstein v Price’s Daelite (Pty) Ltd
[2002] 5 BLLR 472 (LC); SA Metal & Machinery Co (Pty) Ltd v Gamaroff [2010] 2 BLLR 136
(LAC); Bedderson v Sparrow Schools Education Trust (2010) 31 ILJ 1325 (LC); Evans v Japanese
School of Johannesburg (2006) 27 ILJ 2607 (LC); Rubin Sportswear v SACTWU & Others [2004]
10 BLLR 986 (LAC); Thomas (Rockliffe) v Mincom (Pty) Ltd [2007] 10 BLLR 993 (LC); Cash
Paymaster Services (Pty) Ltd v Browne [2006] 2 BLLR 131 (LAC); HOSPERSA obo Venter v SA
Nursing Council & Others [2006] 6 BLLR 558 (LC); Arb Electrical Wholesalers (Pty) Ltd v Hibbert
[2015] 11 BLLR 1081 (LAC); BMW (South Africa) v NUMSA & Others [2019] 2 BLLR 107
(LAC); Datt v Gunnebo Industries (Pty) Ltd [2009] 5 BLLR 449 (LC); Randall v Karan (2010)
31 ILJ 2449 (LC); Brian Joffe t/a J Air v CCMA & Others [2019] 1 BLLR 1 (LAC).
Question 18
Amman had some 20 years’ service with a supermarket. He was a union office-bearer of the
Food and Retail Workers Union and a shop steward at the supermarket. When the super-
market faced financial difficulties Amman was offered a managerial position as an alterna-
tive to retrenchment on condition that he relinquished his union positions. When Amman
rejected the condition he was dismissed. Consider the fairness or otherwise of Amman’s
dismissal. (10)
Hint: See FAWU & Another v The Cold Chain [2007] 7 BLLR 638 (LC); IMATU & Others v
Rustenburg Transitional Council [1999] 12 BLLR 1299 (LC).
Question 19
Workforce (Pty) Ltd is a temporary employment service (TES or labour broker). Workforce
employs many employees and places them with clients to perform work for the clients. Liz is
a plumber and one of the Workforce employees. When Jordan’s Civils CC obtained a
contract to develop a new township area, the manager of Jordan’s approached Workforce
for the services of a plumber and Liz was sent to work for Jordan’s at R8 000 per month.
Nine weeks after Liz started at Jordan’s the Workforce HR manager told her that Jordan’s
no longer wanted her there because they did not want to be considered her employer.
Consider Liz’s legal position. (10)
Hint: Ss 198 & 198A and specifically s 198A(4).
Question 20
Jade Jewellers is a family business, selling jewellery and manufacturing exclusive gold and
diamond rings and necklaces. It employs 22 employees in its sales, manufacturing and
administration departments. When the owner decides to retire he sells the business to
Diamonds and Denims (Pty) Ltd, an importer of jewellery and denim jeans with a formid-
able South African retail market.
20.1 Explain whether the 22 employees should be retrenched before the sale of the
business is finalised or whether they should be transferred to the new owner once the
sale has been finalised. (5)
20.2 Assume that the 22 employees were transferred to Diamonds and Denims. All of
them could be accommodated in sales, clerical and administrative positions except
the five employees who used to work in Jade’s manufacturing section because Dia-
monds and Denims does not manufacture jewellery; it only imports jewellery. In con-
sequence, the five employees were offered positions in the sale of jeans. The offer
amounted to a total change in work, different employment conditions and lower sal-
aries. They were not prepared to accept the new positions and resigned. Advise them
as to their legal position. (10)
Hint: Ss 197, 186(1)(e), 187(1)(g) & 191(5)(a)(ii).
Dismissals 371
Appendix 1
SCHEDULE 8
CODE OF GOOD PRACTICE: DISMISSAL
1. Introduction
(1) This code of good practice deals with some of the key aspects of dismissal for reasons re-
lated to conduct and capacity. It is intentionally general. Each case is unique, and departures
from the norms established by this Code may be justified in proper circumstances. For example,
the number of employees employed in an establishment may warrant a different approach.
(2) This Act emphasises the primary of collective agreements. This Code is not intended as a
substitute for disciplinary codes and procedures where these are the subject of collective agree-
ments, or the outcome of joint decision-making by an employer and a work-place forum.
(3) The key principle in this Code is that employers and employees should treat one another
with mutual respect. A premium is placed on both employment justice and the efficient opera-
tion of business. While employees should be protected from arbitrary action, employers are
entitled to satisfactory conduct and work performance from their employees.
2. Fair reasons for dismissal
(1) A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair pro-
cedure, even if it complies with any notice period in a contract of employment or in legislation
governing employment. Whether or not a dismissal is for a fair reason is determined by the facts
of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is
fair is determined by referring to the guidelines set out below.
(2) This Act recognises three grounds on which a termination of employment might be legit-
imate. These are: the conduct of the employee, the capacity of the employee, and the operation-
al requirements of the employer’s business.
(3) This Act provides that a dismissal is automatically unfair if the reason for the dismissal is
one that amounts to an infringement of the fundamental rights of employees and trade unions,
or if the reason is one of those listed in section 187. The reasons include participation in a lawful
strike, intended or actual pregnancy and acts of discrimination.
(4) In cases where the dismissal is not automatically unfair, the employer must show that the
reason for dismissal is a reason related to the employee’s conduct or capacity, or is based on the
operational requirements of the business. If the employer fails to do that, or fails to prove that
the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.
Disciplinary procedures prior to dismissal

3. Disciplinary measures short of dismissal
(1) All employers should adopt disciplinary rules that establish the standard of conduct re-
quired of their employees. The form and content of disciplinary rules will obviously vary accord-
ing to the size and nature of the employer’s business. In general, a larger business will require a
more formal approach to discipline. An employer’s rules must create certainty and consistency
in the application of discipline. This requires that the standards of conduct are clear and made
available to employees in a manner that is easily understood. Some rules or standards may be so
well established and known that it is not necessary to communicate them.
(2) The courts have endorsed the concept of corrective or progressive discipline. This
approach regards the purpose of discipline as a means for employees to know and understand
what standards are required of them. Efforts should be made to correct employees’ behaviour
through a system of graduated disciplinary measures such as counselling and warnings.
(3) Formal procedures do not have to be invoked every time a rule is broken or a standard is
not met. Informal advice and correction is the best and most effective way for an employer to deal
with minor violations of work discipline. Repeated misconduct will warrant warnings, which them-
selves may be graded according to degrees of severity. More serious infringements or repeated
misconduct may call for a final warning, or other action short of dismissal. Dismissal should be
reserved for cases of serious misconduct or repeated offences.
Dismissals for misconduct
(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the
misconduct is serious and of such gravity that it makes a continued employment relationship
intolerable. Examples of serious misconduct, subject to the rule that each case should be judged
on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful
endangering of the safety of others physical assault on the employer, a fellow employee, client or
customer and gross insubordination. Whatever the merits of the case for dismissal might be, a
dismissal will not be fair if it does not meet the requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in
addition to the gravity of the misconduct consider factors such as the employee’s circumstances
(including length of service, previous disciplinary record and personal circumstances), the
nature of the job and the circumstances of the infringement itself.
(6) The employer should apply the penalty of dismissal consistently with the way in which it
has been applied to the same and other employees in the past, and consistently as between two
or more employees who participate in the misconduct under consideration.
4. Fair procedure
(1) Normally, the employer should conduct an investigation to determine whether there are
grounds for dismissal. This does not need to be a formal enquiry. The employer should notify
the employee of the allegations using a form and language that the employee can reasonably
understand. The employee should be allowed the opportunity to state a case in response to the
allegations. The employee should be entitled to a reasonable time to prepare the response and
to the assistance of a trade union representative or fellow employee. After the enquiry, the
employer should communicate the decision taken, and preferably furnish the employee with
written notification of that decision.
(2) Discipline against a trade union representative or an employee who is an office-bearer or
official of a trade union should not be instituted without first informing and consulting the trade
union.
(3) If the employee is dismissed, the employee should be given the reason for dismissal and
reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or
to any dispute resolution procedures established in terms of a collective agreement.
(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply
with these guidelines, the employer may dispense with pre-dismissal procedures.
5. Disciplinary records
Employers should keep records for each employee specifying the nature of any disciplinary
transgressions, the actions taken by the employer and the reasons for the actions.
6. Dismissals and industrial action
(1) Participation in a strike that does not comply with the provisions of chapter IV is miscon-
duct. However, like any other act of misconduct, it does not always deserve dismissal. The sub-
stantive fairness of dismissal in these circumstances must be determined in the light of the facts
of the case, including –
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.
(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union
official to discuss the course of action it intends to adopt. The employer should issue an ultima-
tum in clear and unambiguous terms that should state what is required of the employees and
what sanction will be imposed if they do not comply with the ultimatum. The employees should
be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying
with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the
employees in question, the employer may dispense with them.
Dismissals 373
7. Guidelines in cases of dismissal for misconduct

Any person who is determining whether a dismissal for misconduct is unfair should consider –
(a) whether or not the employee contravened a rule or standard regulating conduct in,
or of relevance to, the work place; and
(b) if a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware,
of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or
standard.
8. Probation
(1) (a) An employer may require a newly-hired employee to serve a period of probation
before the appointment of the employee is confirmed.
(b) The purpose of probation is to give the employer an opportunity to evaluate the
employee’s performance before confirming the appointment.
(c) Probation should not be used for purposes not contemplated by this Code to deprive
employees of the status of permanent employment. For example, a practice of dismissing em-
ployees who complete their probation periods and replacing them with newly-hired employees,
is not consistent with the purpose of probation and constitutes an unfair labour practice.
(d) The period of probation should be determined in advance and be of reasonable dura-
tion. The length of the probationary period should be determined with reference to the nature
of the job and the time it takes to determine the employee’s suitability for continued employ-
ment.
(e) During the probationary period, the employee’s performance should be assessed. An
employer should give an employee reasonable evaluation, instruction, training, guidance or
counselling in order to allow the employee to render a satisfactory service.
(f) If the employer determines that the employee’s performance is below standard, the
employer should advise the employee of any aspects in which the employer considers the
employee to be failing to meet the required performance standards. If the employer believes
that the employee is incompetent, the employer should advise the employee of the respects in
which the employee is not competent. The employer may either extend the probationary period
or dismiss the employee after complying with subitems (g) or (h), as the case may be.
(g) The period of probation may only be extended for a reason that relates to the purpose
of probation. The period of extension should not be disproportionate to the legitimate purpose
that the employer seeks to achieve.
(h) An employer may only decide to dismiss an employee or extend the probationary
period after the employer has invited the employee to make representations and has considered
any representations made. A trade union representative or fellow employee may make the rep-
resentations on behalf of the employee.
(i) If the employer decides to dismiss the employee or to extend the probationary period,
the employer should advise the employee of his or her rights to refer the matter to a council
having jurisdiction, or to the Commission.
(j) Any person making a decision about the fairness of a dismissal of an employee for poor
work performance during or on expiry of the probationary period ought to accept reasons for
dismissal that may be less compelling than would be the case in dismissals effected after the com-
pletion of the probationary period.
(2) After probation, an employee should not be dismissed for unsatisfactory performance
unless the employer has –
(a) given the employee appropriate evaluation, instruction, training, guidance or coun-
selling; and
(b) after a reasonable period of time for improvement, the employee continues to per-
form unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons
for the unsatisfactory performance and the employer should consider other ways, short of dis-
missal, to remedy the matter.
(4) In the process, the employee should have the right to be heard and to be assisted by a
trade union representative or a fellow employee.
9. Guidelines in cases of dismissal for poor work performance
Any person determining whether a dismissal for poor work performance is unfair should con-
sider –
(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not –
(i) the employee was aware, or could reasonably be expected to have been aware,
of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance
standard; and
(iii) dismissal was an appropriate sanction for not meeting the required perform-
ance standard.
10. Incapacity: Ill health and injury
(1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an
employee is temporarily unable to work in these circumstances, the employer should investigate
the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is
unreasonably long in the circumstances, the employer should investigate all the possible alterna-
tives short of dismissal. When alternatives are considered, relevant factors might include the
nature of the job, the period of absence, the seriousness of the illness or injury and the possibil-
ity of securing a temporary replacement for the ill or injured employee. In cases of permanent
incapacity, the employer should ascertain the possibility of securing alternative employment, or
adapting the duties or work circumstances of the employee to accommodate the employee’s
disability.
(2) In the process of the investigation referred to in subsection (1) the employee should be
allowed the opportunity to state a case in response and to be assisted by a trade union repre-
sentative or fellow employee.
(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the in-
capacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism
or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to con-
sider.
(4) Particular consideration should be given to employees who are injured at work or who are
incapacitated by work-related illness. The courts have indicated that the duty on the employer to
accommodate the incapacity of the employee is more onerous in these circumstances.
11. Guidelines in cases of dismissal arising from ill health or injury
Any person determining whether a dismissal arising from ill health or injury is unfair should
consider –
(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable –
(i) the extent to which the employee is able to perform the work;
(ii) the extent to which the employee’s work circumstances might be adapted to
accommodate disability, or, where this is not possible, the extent to which the
employee’s duties might be adapted; and
(iii) the availability of any suitable alternative work.
Dismissals 375
Appendix 2
CODE OF GOOD PRACTICE: DISMISSALS BASED ON OPERATIONAL REQUIREMENTS

Italicised words and phrases bear the same meaning as [that] accorded to them by section 213 of the Labour
Relations Act, 1995.
(1) The Labour Relations Act, 1995 (Act No. 66 of 1995) (“the Act”) defines a dismissal based
on the operational requirements of an employer as one that is based on the economic, technologi-
cal, structural or similar needs of the employer. It is difficult to define all the circumstances that
might legitimately form the basis of a dismissal for this reason. As a general rule, economic
reasons are those that relate to the financial management of the enterprise. Technological
reasons refer to the introduction of new technology which affects work relationships either by
making existing jobs redundant or by requiring employees to adapt to the new technology or a
consequential restructuring of the workplace. Structural reasons relate to the redundancy of
posts consequent to a restructuring of the employer’s enterprise.
(2) Dismissals for operational requirements have been categorised as “no fault” dismissals. In other
words, it is not the employee who is responsible for the termination of employment. Because
retrenchment is a “no fault” dismissal and because of its human cost, the Act places particular
obligations on an employer, most of which are directed toward ensuring that all possible alterna-
tives to dismissal are explored and that the employees to be dismissed are treated fairly.
(3) The obligations placed on an employer are both procedural and substantive. The purpose
of consultation is to enable the parties, in the form of a joint problem-solving exercise, to strive
for consensus if that is possible. The matters on which consultation is necessary are listed in sec-
tion 189(2). This section requires the parties to attempt to reach consensus on, amongst other
things, appropriate measures to avoid dismissals. In order for this to be effective, the consultation
process must commence as soon as a reduction of the workforce, through retrenchments or
redundancies, is contemplated by the employer, so that possible alternatives can be explored.
The employer should in all good faith keep an open mind throughout and seriously consider
proposals put forward.
(4) The Act also provides for the disclosure by the employer of information on matters rele-
vant to the consultation. Although the matters on which information for the purposes of consul-
tation is required are specified in section 189(3), the list in that section is not a closed one. If
considerations other than those that are listed are relevant to the proposed dismissal or the
development of alternative proposals, they should be disclosed to the consulting party. In the
event of a disagreement about what information is to be disclosed any party may refer the dis-
pute to the CCMA in terms of section 16(6) of the Act
(5) The period over which consultation should extend is not defined in the Act. The circum-
stances surrounding the consultation process are relevant to a determination of a reasonable
period. Proper consultation will include:
(a) The opportunity to meet and report back to employees;
(b) the opportunity to meet with the employer; and
(c) the request, receipt and consideration of information.
(6) The more urgent the need by the business to respond to the factors giving rise to any
contemplated termination of employment, the more truncated the consultation process might
be. Urgency may not, however, be induced by the failure to commence the consultation process
as soon as a reduction of the workforce was likely. On the other hand, the parties who are
entitled to be consulted must meet, as soon, and as frequently, as may be reasonably practicable
during the consultation process.
(7) If one or more employees are to be selected for dismissal from a number of employees, the Act
requires that the criteria for their selection must be either agreed with the consulting parties or,
if no criteria have been agreed, be fair and objective criteria.
(8) Criteria that infringe a fundamental right protected by the Act when they are applied, can
never be fair. These include selection on the basis of union membership or activity, pregnancy,
or some other unfair discriminatory ground. Criteria that are neutral on the face of it should be
carefully examined to ensure that when they are applied, they do not have a discriminatory
effect. For example, to select only part-time workers for retrenchment might discriminate against
women, since women are predominantly employed in part-time work.
(9) Selection criteria that are generally accepted to be fair include length of service, skills and
qualifications. Generally the test for fair and objective criteria will be satisfied by the use of the
“last in, first out” (LIFO) principle. There may be instances where the LIFO principal or other
criteria need to be adapted. The LIFO principle, for example, should not operate so as to
undermine an agreed affirmative action program. Exceptions may also include the retention of
employees based on criteria mentioned above which are fundamental to the successful operation
of the business. These exceptions should, however, be treated with caution.
(10) Employees dismissed for reasons based on the employer’s operational requirements are en-
titled to severance pay of at least one week’s remuneration for each completed year of continu-
ous service with the employer, unless the employer is exempted from the provisions of section
196. This minimum requirement does not relieve an employer from attempting to reach consen-
sus on severance pay during the period of consultation. The right of the trade union, through
collective bargaining, to seek an improvement on the statutory minimum severance pay is not
limited or reduced in any way.
(11) If an employee either accepted or unreasonably refused to accept an offer of alternative
employment, the employee’s right to severance pay is forfeited. Reasonableness is determined by
a consideration of the reasonableness of the offer of alternative employment and the reason-
ableness of the employee’s refusal. In the first case, objective factors such as remuneration, status
and job security are relevant. In the second case, the employee’s personal circumstances play a
greater role.
(12) (1) Employees dismissed for reasons based on the employer’s operational requirements
should be given preference if the employer again hires employees with comparable qualifications,
subject to:
(a) The employee, after having been asked by the employer, having expressed within a
reasonable time from the date of dismissal a desire to be rehired.
(b) A time limit on preferential rehiring. The time limit must be reasonable and must be the
subject of consultation.
(2) If the above conditions are met, the employer must take reasonable steps to inform the
employee, including notification to the representative trade union, of the offer of re-employment.
Dismissals 377
Appendix 3
GENERAL CLOTHING MANUFACTURERS

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

Offence
offence offence offence offence
Theft of company Dismissal
property
Fraud Dismissal
Insubordination Final written warning Dismissal
Category two – serious

Offence
Drinking on duty Final written warning Dismissal
Unauthorised absence Final written warning Dismissal
Insolence/cheekiness Written warning Final written warning Dismissal
Category three – less serious

Offence
Late coming Written warning Final written Dismissal
(less than 2 hrs) warning
Wastage of materials Verbal warning Written warning Final written Dismissal
warning
Playing while working Verbal warning Written warning Final written Dismissal
and interfering with warning
production
Appendix 4
(The following is an abbreviated disciplinary procedure; it should, of course, be more detailed,
but this should give the reader an idea of what the contents of such procedures are.)
DISCIPLINARY PROCEDURE
1 Policy regarding discipline
Disciplinary action is any action instituted by Management as a consequence of the unaccept-
able, intolerable or unsatisfactory performance and/or behaviour of an employee.
The workforce is considered to be an important component of the Company and the Com-
pany shall thus endeavour to maintain and improve performance by its employees. For this
reason disciplinary action is regarded as a manner in which unacceptable or intolerable behav-
iour and/or unsatisfactory performance is or could be improved. Punishment will, therefore, be
regarded as a last resort in the event of an employee not heeding corrective action.
In the interest of sound labour relations and labour peace the Company undertakes to main-
tain fairness and consistency when disciplinary action is taken.
2 Authority to discipline
The authority to discipline an employee shall vest in the management of each section or depart-
ment, subject to the provision that final written warnings, suspensions without pay and dismissals
shall be handled by the Personnel Officer, with the right to appeal to the Personnel Manager. The
decision taken by the Personnel Manager is subject to the approval of the General Manager.
3 Disciplinary procedures
To ensure that no doubt exists about disciplinary action that has been taken, all reprimands,
warnings and other disciplinary steps shall be kept on the file of the employee concerned.
Disciplinary steps:
Disciplinary action to be taken shall depend on the offence committed (as contained in the dis-
ciplinary code) and shall comprise one or more of the following:
3.1 Verbal warning
3.2 Written warning (First, second, etc)
3.3 Final written warning
3.4 Suspension without pay
3.5 Dismissal with notice or summary dismissal
3.1 Verbal warning
A verbal warning shall be accompanied by counselling.
A verbal warning may be issued in the event of any form of misconduct or poor performance
contained in the Disciplinary Code for which a verbal warning is justified (Category 3).
The foreman shall also notify the employee of the possible consequence(s) in the event of a
re-occurrence of the same or a similar “offence”.
3.2 Written warning
A written warning may be issued in the event of any form of misconduct or poor performance
contained in the Disciplinary Code for which a written warning is justified (Category 1, 2 and 3)
and it may be a first or second or final warning. The purpose of such warnings is to endeavour to
improve the poor performance or incorrect or intolerable behaviour of an employee.
All written warnings shall be valid against the employee for a period of six months from the
date of its issue and shall be kept on the employee’s file. The first written warning is considered
the first formal disciplinary step against an employee. This warning serves to inform the employee
of future disciplinary action that can and shall be taken against him in the event of him commit-
ting the same or a similar offence again. This warning is used for less serious offences.
Dismissals 379
A second written warning follows the first written warning when the same or similar offence
has been committed and is used for serious and less serious offences.
A third written warning follows the second written warning when the same or similar offence
has been committed and is used for serious and less serious offences.
3.3 Final written warning

A final written warning is considered the last step in endeavouring to improve the performance
or behaviour of an employee. A final warning is justified for serious and some very serious
offences as contained in Categories 1 and 2 of the Disciplinary Code, as well as in the event of
less serious “offences” being committed repeatedly.
3.4 Suspension without pay

Suspension without pay as a form of discipline or “punishment” shall only be justified in circum-
stances which justify the dismissal of an employee, so that suspension without pay shall be adopt-
ed in lieu of dismissal.
The period of such suspension shall be at the discretion of Management, but shall not exceed
a period of two weeks.
Before an employee may be suspended without pay a disciplinary hearing shall be held and
the employee shall be counselled.
3.5 Dismissal with notice or summary dismissal

Summary dismissal shall only be justified if an employee is guilty of a material breach of contract,
ie if the employee is guilty of a Category 1 offence with a criminal element or if a final written
warning is still operative against him for any other offence. That means an employee shall only
be dismissed if the employer has a valid reason for such dismissal, provided that such dismissal
shall also be fair in the circumstances.
Such dismissal shall take immediate effect and no remuneration shall be paid out in lieu of
notice. Management may, however, at its discretion and if circumstances warrant it, decide on
the termination of an employee’s services with notice or payment in lieu of notice, provided that
such notice or payment in lieu thereof shall not exceed a period of two weeks.
Before an employee may be dismissed a disciplinary hearing shall be held.
4 Disciplinary hearings (enquiries)

If further action is required after an employee has received a final written warning, or in the case
of a Category 1 offence a disciplinary hearing shall be held as soon as possible after an offence
has been committed.
The employee shall be notified of the charge against him, as well as of the date and time of the
hearing. The employee shall be entitled to call any fellow employee as a representative at the
hearing. Furthermore, the employee shall be entitled to an interpreter if he so chooses, provided
that he shall notify Management in advance in order for the necessary arrangements to be made.
The Personnel Officer shall act as presiding officer at the hearing. In the event of the latter
being closely involved with the matter at hand, he shall act as prosecutor and another senior
member of Management shall act as presiding officer.
At the hearing both Management and the employee shall have the right to testify, produce
evidence of whatever nature, call witnesses and cross-examine the other party and his witnesses.
Before a final decision is reached, Management shall afford the employee an opportunity to
prove mitigating circumstances, after which said employee’s record and any other relevant infor-
mation shall be taken into consideration.
The particulars of the hearing and the decision shall be minuted.
The employee shall be notified of his right to appeal against the decision taken at the hearing
if such decision is a final warning, suspension without pay or dismissal.
5 Appeal
After the employee has been notified of his right to appeal at the disciplinary hearing he has five
working days in which to appeal against the decision taken at the said hearing.
The employee shall appeal in writing on the prescribed form and shall state the grounds for
his appeal.
The appeal hearing shall be chaired by the Personnel Manager or any other person from Man-
agement, other than the person who acted as presiding officer at the disciplinary hearing.
At the appeal hearing the employee shall have the same rights as at the disciplinary hearing.
The proceedings of the appeal shall be minuted.
18
UNFAIR LABOUR PRACTICES
18.1 Introduction
The concept of unfair labour practice under the 1956 Labour Relations Act was a catch-all
category of conduct by employers, employees and their organisations which, in the opinion
of the Industrial Court, fell within the meaning of an unfair labour practice. With the
implementation of the Labour Relations Act of 1995 (LRA) this catch-all category disap-
peared and unfair conduct of various types is explicitly and separately dealt with. For
example, unfair dismissals are dealt with in Chapter 8, unfair employer conduct towards
employees for exercising their freedom of association in Chapter 2, organisational rights in
Part A of Chapter 3 and unilateral amendment to employment conditions in section 64.
These forms of conduct are no longer termed “unfair labour practices”; specific reference
is made to the conduct or practice and is called “unfair dismissal”, “infringing freedom of
association” and so on. They derive from what the old Industrial Court identified as unfair
practices.
Only a small number of practices previously considered by the Industrial Court as unfair
were not placed in a specific category. They originally appeared under the heading “residual
unfair labour practices” in item 2 of Schedule 7 to the LRA when the Act took effect in
November 1996. They were included in Schedule 7 as a transitional measure because, at the
time the LRA was enacted, it was envisaged that these practices would be incorporated in
legislation applicable to individual labour law (whereas the LRA primarily deals with collect-
ive labour law).
The “new” concept of unfair labour practice consequently refers to only a few specific
practices and does not include labour practices in general as was the case under the old
LRA. In Nawa & Another v Department of Trade & Industry [1998] 7 BLLR 701 (LC) and
National Entitled Workers Union v CCMA & Others (2003) 24 ILJ 2335 (LC) the Labour Court
confirmed that the LRA does not provide for a general unfair labour practice definition
and concluded that an employee must show that the practice complained of falls within the
description of “residual unfair labour practices” as envisaged in the then item 2 of Schedule 7.
With the implementation of the 2002 amendments to the LRA on 1 August 2002 “residual
unfair labour practices” were removed from Schedule 7 and were placed in Chapter VIII of
the Act – as section 186(2) of the LRA. Chapter VIII, governing only dismissals before the
2002 amendments, now includes unfair labour practices as well.
It needs to be noted that, unlike the position under the old Act, an unfair labour prac-
tice can, in terms of the repealed item 2(1) of Schedule 7 and now section 186(2), be com-
mitted by an employer only. Employees can no longer make themselves guilty of unfair
practices. It follows then that it is no longer possible for an employer to allege that an
unfair labour practice was perpetrated by an employee and no remedies in this case are
available to the employer under the LRA. In Maseko v Entitlement Experts [1997] 3 BLLR 317
(CCMA) the CCMA decided that unfair acts by employees against their employers are not
justiciable under the LRA. This approach was endorsed by the Labour Court in NEWU v
CCMA & Others [2004] 2 BLLR 165 (LC).
381
18.2 Definition of “unfair labour practice” (s 186(2))

In terms of section 185(b) every employee has the right not to be subjected to unfair labour
practices.
Section 186(2) defines an unfair labour practice as follows:
(2) “Unfair labour practice” means any unfair act or omission that arises between an employer
and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding
disputes about dismissals for a reason relating to probation) or training of an employee or
relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dis-
missal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of
any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclos-
ures Act of 2000 on account of the employee having made a protected disclosure defined in
1
that Act.
The very specific language adopted by the legislature makes this an exhaustive list and no
other unfair practice or treatment will qualify as an unfair labour practice.
In Mzimni & Another v Municipality of Umtata [1998] 7 BLLR 780 (Tk) and Ntlabezo & Others
v MEC for Education, Eastern Cape & Others [2002] 3 BLLR 274 (Tk) it was held that disputes
concerning job grading were not about unfair labour practices as envisaged in section
186(2). In later judgments, however, it was held that job grading potentially constitutes an
unfair labour practice – see Mathibeli v Minister of Labour & Others [2015] 3 BLLR 267
(LAC); Eskom Holdings v NUM obo Coetzee [2018] 2 BLLR 176 (LC).
Transfers do not fall within the definition of an unfair labour practice – see Simela &
Others v MEC for Education, Province of the Eastern Cape & Another [2001] 9 BLLR 1085 (LC).
Claims for payment, such as claims for non-payment or under-payment of wages concern
remuneration. Because remuneration is not a “benefit” as contemplated in section
186(2)(a) such claims cannot be arbitrated by a council or the CCMA as unfair labour
practices – see TGWU obo Malahla v Red Alert Security [2000] 10 BALR 1165 (CCMA); Sonka v
Johnny Bags (Pty) Ltd [2001] 10 BALR 1116 (CCMA); Moses v Magnum Security Services [2002]
11 BALR 1166 (CCMA); Eskom v NUM [2003] 6 BALR 708 (CCMA). Payment claims were,
prior to the amendments to the BCEA that took effect in January 2019, attended to by the
Department of Labour only (or an employee could approach a court of law). An inspector
in the Department would investigate a payment claim and, where necessary, issue a compli-
ance order. Failure by an employer to observe a compliance order was taken to the Labour
Court. The BCEA amendments now make it possible that an employee can approach the
CCMA with a claim for under-payment, not as an unfair labour practice, but as a payment
claim. Or, an employee can still call on the Department for assistance and if a compliance
order has been issued and not obeyed by the employer, the CCMA can be requested to
make the compliance order an arbitration award.
________________________
1 When unfair labour practices were initially defined in item 2 of Sch 7, the definition included unfair dis-
crimination based on race, gender, age, religion, disability, language, marital status, etc. With the ad-
vent of the Employment Equity Act items 2(1)(a) and 2(2) of Sch 7, dealing with discrimination issues,
were removed from the LRA and included in Ch II of the EEA. Unfair discrimination is thus no longer
termed an unfair labour practice; it falls within its own, specific category, namely “unfair discrimina-
tion”. With the removal of discrimination from Sch 7 an “unfair labour practice” was only one of: (a)
unfair employer conduct relating to promotion, demotion, training or provision of benefits; (b) unfair
suspension or other disciplinary action; and (c) refusal or failure to re-employ ex-employees in terms of
an agreement. The additional unfair labour practices now found in s 186(2)(d), occupational detri-
ments as contemplated in the Protected Disclosures Act, have been inserted by the 2002 amendments.
Unfair labour practices 383
Bonuses and car, housing and other allowances have been held to concern remunera-
tion and are therefore not benefits as envisaged in section 186(2) – see Labuschagne v
Techno Plastics (Pty) Ltd [2005] 6 BALR 610 (MEIBC); Zondo v Group 4 Security Services [2009]
12 BALR 1329 (CCMA); Mankahla & Others v University of Transkei [2004] 11 BALR 1340
(P); AWAWU obo Lotter v Safcol [2002] 5 BALR 470 (CCMA); HOSPERSA obo Van Wyk v SA
National Parks (Golden Gate) [2009] 2 BALR 169 (CCMA); Harris v Volkswagen of South Africa
(Pty) Ltd [2000] 10 BALR 1140 (CCMA); Northern Cape Provincial Administration v Hambidge
NO & Others [1999] 7 BLLR 698 (LC); HOSPERSA & Another v Northern Cape Provincial
Administration (2000) 21 ILJ 1066 (LAC); SA Post Office Ltd v CCMA & Others [2012] 11
BLLR 1183 (LC). It is noteworthy that the CCMA and the courts have not been consistent
in their decisions on what in fact constitutes a “benefit”. Whilst the majority of the decisions
subscribed to the notion that any payment in return for services rendered constitutes
remuneration and not a benefit, there were a few interesting decisions that held the oppo-
site view (e.g. Protekon (Pty) Ltd v CCMA & Others [2005] 7 BLLR 703 (LC)). The decision in
Apollo Tyres South Africa (Pty) Ltd v CCMA & Others [2013] 5 BLLR 434 (LAC) appears to
have settled the uncertainty. In Apollo the Labour Appeal Court held that a “benefit” means
“existing advantages or privileges to which an employee is entitled as a right or granted in
terms of a policy or practice subject to the employer’s discretion” and further found that
“remuneration” is wide enough to include wages, salaries and most, if not all, extras or
benefits.
The unilateral amendment to conditions of employment is not an unfair labour practice
2
as defined and is regulated by section 64 of the LRA only.
The National Minimum Wage Act 9 of 2018 (NMWA) introduces a new form of unfair
labour practice: an employer who unilaterally amends wages or other conditions of employ-
ment in an attempt to circumvent the provisions relating to the prescribed minimum wages
is guilty of an unfair labour practice – see section 4(8) of the NMWA.
18.3 Promotions
The Oxford Dictionary defines “promotion” as “raise to a higher rank or office”. In Mashe-
goane & Another v University of the North [1998] 1 BLLR 73 (LC) the Labour Court held that
an appointment to a position which carries greater authority and status amounts to promo-
tion.
The employer’s unfair conduct relating to promotion constitutes an unfair labour prac-
tice. “Unfair conduct” implies a failure to meet an objective standard and may be taken to
include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
Applied in the context of promotions this means that mere unhappiness or a perception of
unfairness does not necessarily equal unfair conduct. “The process of selection inevitably
results in a candidate being appointed and the unsuccessful candidate(s) being dis-
appointed. This is not unfair” (SAMWU obo Damon v Cape Metropolitan Council (1999) 20 ILJ
714 (CCMA)). In PSA obo Badenhorst v Department of Justice (1999) 20 ILJ 253 (CCMA) the
Department was restructured. The CCMA held that the Department could have done more
to keep the staff informed of the rationalisation process. “This may have prevented the
perception that the process had been unfair, but it does not make the process actually
unfair”.
________________________
2 In MITUSA & Others v Transnet Ltd & Others [2002] 11 BLLR 1023 (LAC) it was held that unilateral
amendments to conditions of employment may “arguably fall within the ambit of an unfair labour prac-
tice”. It is respectfully submitted that this is incorrect. S 186(2) does not include unilateral amendments
as a form of unfair labour practice; therefore, such amendments cannot be arbitrated as an unfair
labour practice. Unilateral amendments are catered for in a single provision in the LRA, s 64(4), which
provides for strike action as the only relief.
Promotion is a managerial prerogative and the employer can promote whoever it thinks
is the best or most suitable candidate for the position. However, an employer is required to
act fairly when promoting or not promoting an employee; unfair conduct in this regard
constitutes and unfair labour practice. The managerial prerogative is thus limited both pro-
cedurally and substantively, meaning that the employer must act procedurally and substan-
tively fairly in the promotion or non-promotion of an employee.
Procedural fairness implies the following considerations.
• The employer must adhere to the “bottom line” for a fair promotion procedure, which is
to ensure that all candidates are afforded a reasonable opportunity to promote their can-
didature (Mthembu & Another v SA Police Service & Another (2010) 31 ILJ 1014 (BCA); PSA
obo Badenhorst v Department of Justice (1999) 20 ILJ 253 (CCMA)).
• An employer has to follow its own procedures – the source of these procedures may be
legislation, a collective agreement, company policy or an established practice (NUTESA v
Border Technikon [2005] 12 BALR 1302 (CCMA); Manana v Department of Labour [2010] 6
BLLR 664 (LC); Nelson Mandela Metropolitan Municipality (NMMM) v Mkumatela [2016] 6
BLLR 585 (LAC)). If the employer discovers that the procedure has not been followed
correctly, a fresh procedure may be conducted to cure the defects. This may include the
re-advertising of a post or granting an interview which was originally refused.
• An employee may challenge the composition and/or the competency of a selection panel.
The persons on a selection panel need not be experts, neither do they need to be qualified
in the particular position that is under consideration. What is required is that the panel
members have reasonable knowledge – that is, they should be in a position to make a
reasonably informed decision – or, as is commonly said, they should “apply their minds”.
• Employees who have been acting in a more senior position do not have an automatic
right to be promoted to that position when it becomes available (SAPS v SSSBC & Others
[2010] 8 BLLR 892 (LC)). However, employers run the risk of acting unfairly if they do
not at least consider the employee who has been acting. Employees often claim that their
acting in a higher position creates a “legitimate expectation” of promotion. It needs to
be noted, however, and our case law is clear on this, that a legitimate expectation gives
the employee nothing more than an opportunity to be heard before a decision is made
(IMATU obo Coetzer v Stad Tygerberg (1999) 20 ILJ 971 (CCMA); Administrator, Transvaal &
Others v Traub & Others (1989) 10 ILJ 823 (A); Catholic Bishops Publishing Co & Others v
State President & Others 1990 (1) SA 849 (A); Gurarnah v South African Weather Services
[2004] 4 BALR 454 (CCMA); Limekaya v Department of Education [2004] 5 BALR 586
(GPSSBC); Ramoroka v Robben Island Museum (2012) 33 ILJ 500 (CCMA)).
• Promotion should involve some reward such as a higher salary, according to SACSAAWU
obo Nguyuza v Premier Loss Control CC [1998] 9 BALR 1190 (CCMA). It is submitted, how-
ever, that an elevation involving, for instance, a higher status without a higher salary
could arguably be classified as a promotion.
• An employer should consider the development of an employee. This development may
involve promotion. An employer does not commit an unfair labour practice if it does not
develop or deploy staff so that they can gain more knowledge and experience if it is not
contractually bound to do so. However, sight must not be lost of employment equity. Pro-
motion is an obvious affirmative action measure and training is specifically mentioned as
such a measure (s 15 of the Employment Equity Act). There is consequently a duty on
employers to train and develop employees in the context of affirmative action. This
means that denial of promotion because of the lack of an attribute, which lack could
have been cured by training, may well constitute unfair conduct relating to promotion.
In this context unfair conduct relating to training could constitute an unfair labour prac-
tice. See, in this regard, Monyakeni v SA Police Service & Others (2008) 29 ILJ 3111 (BCA);
Lotter v SA Police Service (2005) 26 ILJ 578 (BCA).
Substantive fairness in the context of promotions refers to the reasons why the employer
decides to prefer one employee to others for the promotion. The employer retains the
discretion to appoint the person it considers the most suitable candidate for the post. In the
process it may take subjective considerations into account, such as performance at an
interview. Because this is so, the decided cases clearly indicate that an arbitrator should
exercise deference to the employer’s discretion and not interfere, unless it is shown that the
employer has failed to apply his mind in the selection of the candidate. See SAMWU obo
Damon v Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA); Van Rensburg v Northern Cape
Provincial Administration (1997) 18 ILJ 1421 (CCMA). In practice this means that the em-
ployer will be allowed a margin of latitude in coming to its decision, but this is subject to
legislation, such as the Employment Equity Act and, perhaps, a collective agreement.
It may not always be easy to justify why a particular candidate has been preferred over
another, but at the very least the employer should be in a position to provide reasons for its
decision (Mashegoane & Another v University of the North, supra; PSA obo Petzer v Department of
Home Affairs (1998) 19 ILJ 412 (CCMA)). There must be a logical connection between the
real reason and the decision taken. The following have been held to be acceptable consid-
erations in preferring one candidate over another: one selection criterion carries more
weight than the rest of the criteria (Rafferty v Department of the Premier [1998] 8 BALR 1017
(CCMA)); preferring one candidate with a lower evaluation mark rather than another
candidate is not necessarily fatal if the employer has good reason for doing so (Van Rensburg
case, supra; PSA obo Dalton & Another v Department of Public Works [1998] 9 BALR 1177
(CCMA); PSA obo Tlowana v MEC for Agriculture & Others [2012] 8 BLLR 805 (LC); Noonan v
SSBC & Others [2012] 9 BLLR 876 (LAC)); not promoting a candidate who does not meet
the education/qualification requirements (PSA obo Thorne v Department of Community Service
(Western Cape) & Others [2018] 12 BLLR 1173 (LAC).
A fair amount of doubt existed as to the difference between a promotion and an appoint-
ment. The majority of employers use one or a combination of two systems through which
employees may advance in an organisation. The first is a system of level progression where
employees are evaluated on a regular basis and, depending on the outcome of the evalu-
ation, progress from one grade to the next. The second system is where vacancies are adver-
tised and current employees are invited to apply for the posts.
If the latter system is used, employees, alongside external candidates, have to apply for
vacant posts. Can it be said that an internal candidate who gets the position has been
appointed to that post or has he been promoted?
Some ingenious arguments existed in support of a narrower interpretation, but the
majority of judgments favoured a wider interpretation in terms of which an external appli-
cant is appointed, while an internal one is promoted. Promotion deals with the substance of the
new job. When the employee’s current job is compared with the new one and the new one
brings about higher remuneration levels, more or better fringe benefits, greater status,
authority and power and more responsibility, the new job involves a promotion, even
though the employee had to apply for the position.
The case of PSA obo Badenhorst v Department of Justice (1999) 20 ILJ 253 (CCMA) clarifies
the issue. In this case the “old” Department was restructured and all existing employees
were invited to apply for newly created posts in the “new” Department. Ms Badenhorst
unsuccessfully applied for a higher post in the new Department. The employer argued that
she should be treated as a job applicant and that the dispute, therefore, did not involve pro-
motion. The Commissioner held as follows:
It appears that the applicant applied for a post which would have resulted in a promotion for her
to a more senior level if her application had been successful . . . While I accept that this was not a
promotion in the ordinary sense of the word, I do not believe that the peculiar nature of the
rationalisation process can allow semantics to change the essential nature of the dispute. No evi-
dence suggested that the applicant’s years of service would not be transferred to the post in the
new structure, nor was it suggested that her employee benefits would be interrupted by such
transfer. A new post would still essentially be with the same employer, the Department of Justice,
but in a remodelled structure in conformity with the rationalisation. It is specious to suggest that
the applicant was a job applicant, in the sense of being an outside job-seeker.
The uncertainty between a promotion and an appointment was finally settled in Department
of Justice v CCMA & Others [2004] 4 BLLR 297 (LAC) when the Labour Appeal Court
decided that an internal candidate for a more senior post is promoted, whilst an external
candidate is appointed to the post. Appointment thus involves a new recruit, whereas promo-
tion is the elevation of a serving employee to a higher position. See also Jele v Premier of the
Province of KwaZulu-Natal & Others [2003] 7 BLLR 723 (LC); City of Cape Town v SAMWU obo
Jacobs [2009] 9 BLLR 882 (LAC).
Another issue which is often encountered in the context of promotions is a promise of a
promotion. Employers or their senior staff members should take care not to make promises
of promotion to a subordinate employee. A promise does not entitle an employee to a
promotion, but it may create an expectation. However, if a promise has a material effect on
the outcome of the employers’ decision, the position may be different.
Employers will increasingly be expected to make their decisions about promotions within
the context of affirmative action. Employers may thus expect attacks from two sides: from
those who were denied promotion, because they do not form part of a designated group
and from those falling in a designated group being denied promotion despite the fact that
they are part of the targeted employees. It has been argued that it is legitimate for an
employer to consider affirmative action when denying promotion to an employee who is
not part of a designated group. If an employee should challenge his non-promotion be-
cause he does not fall within one of the designated groups, the real reason underlying the
3
dispute is discrimination and the matter will have to be adjudicated by the Labour Court.
18.4 Demotions
Demotion is the reverse of promotion, meaning that an employee is moved to a lower rank
or level. The unfair conduct of an employer relating to demotion is an unfair labour prac-
tice.
“Unfair” conduct implies a failure to meet an objective standard and may be taken to
include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
As a disciplinary measure demotion is allowed only in circumstances where a dismissal is
justified but, because of mitigating factors, the employer decides not to dismiss the em-
ployee. See in this regard Arries v Afric Addressing (Pty) Ltd t/a Afric Mail Advertising [1998] 5
BALR 525 (CCMA); Metro Rail (Wits) v SAFWU [1998] 1 BALR 88 (IMSSA); Transtel Johan-
nesburg v TWU [1998] 8 BALR 1127 (IMSSA); TWU obo Van Zyl v Metrorail [1999] 7 BALR
888 (IMSSA); and CWIU obo Sityana & Mane v Valpa Easigas [2000] 1 BALR 23 (CCMA).
In Van Niekerk v Medicross Health Care Group (Pty) Ltd [1998] 8 BALR 1038 (CCMA) the
employee was demoted from managerial to clerical status. The CCMA held that it amounted
to an unfair unilateral alteration of terms and conditions of employment and the employer
was ordered to reinstate the employee to his former position. Similarly, in Visser v Vodacom
(Pty) Ltd [2002] 10 BALR 1031 (AMSSA) the transfer of an employee from a managerial to
a technical position without loss of remuneration was held to be a demotion and, in the cir-
cumstances, an unfair labour practice. See also Van Wyk v Albany Bakeries Ltd & Others
[2003] 12 BLLR 1274 (LC); Solidarity obo Kern v Mudau & Others [2007] 6 BLLR 566 (LC);
Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services & Others
[2008] 12 BLLR 1179 (LAC).
In SALSTAFF obo Vrey v Datavia [1999] 6 BALR 757 (IMSSA) the arbitrator held that a
change from financial to administrative duties without a loss of status or pay did not
________________________
3 In the paragraph on promotions reference was made to Garbers C “Promotions: Keeping abreast with
ambition (an overview of the current law on promotion of employees)” Contemporary Labour Law 9(3),
October 1999.
amount to demotion. However, prior consultation to the changes was required. See also
Tsweleng v Conron Spring Manufacturing & Engineering [2005] 2 BALR 159 (MEIBC).
In CEPPWAWU obo Mahlabane v Sasol Synfuel [2003] 9 BALR 1022 (CCMA), after the
employee had accepted transfer to a lower post on the grounds of ill health, his salary was
frozen until the scale applicable to his new post reached his current salary. The employee
then claimed that the wage freeze constituted an unfair demotion. The CCMA commis-
sioner noted that the employee had been consulted and offered the alternative of a salary
reduction or a wage freeze. By choosing the latter, it was found, he had accepted a transfer
on the same terms and conditions. Future increments were therefore a matter of interest,
not right.
It is submitted that demotion other than demotion as a disciplinary sanction should
always be preceded by consultation (see Murray and Independent Newspapers (2003) 24 ILJ
1420 (CCMA); Van der Riet v Leisurenet Ltd t/a Health and Racquet Club [1998] 5 BLLR 471
(LAC)). Demotion as a disciplinary sanction should be implemented only if the employer’s
disciplinary code provides for demotion (see Glass v University of Zululand [2006] 4 BALR
388 (CCMA)).
18.5 Benefits and training

An employer is also guilty of an unfair labour practice if its conduct relating to the pro-
vision of benefits to an employee is unfair. The meaning of “benefits” has been the focus of
a number of cases. The Oxford Dictionary and Thesaurus defines “benefit” as “favourable
or helpful factor or circumstance, advantage, profit” and “payment made under insurance,
social security, welfare”. Its list of synonyms includes payment, pay-out, sick-pay, emoluments,
allowances, extras and fringe benefits.
While this broad definition appears to include a range of rights which accrue to an
employee by virtue of the employment relationship, from wages to pension and medical
aid, the earlier decisions of the CCMA and the Labour Court favoured a narrow interpret-
ation of the concept “benefits”, so that all payments that could be interpreted as falling
under the broad ambit of “remuneration” were not considered to be benefits.
The Labour Court, in Schoeman v Samsung Electronics SA (Pty) Ltd [1997] 10 BLLR 1364
(LC) and Gaylard v Telkom SA Ltd [1998] 9 BLLR 942 (LC), determined that remuneration
is not a benefit for the purposes of item 2(1)(b) of Schedule 7 (now s 186(2)(a)). In the
Samsung case Revelas J held that commission forms part of the employee’s salary and is,
therefore, part of the basic conditions of employment. “Remuneration is different from
benefits. A benefit is something extra apart from remuneration. Often it is a term and con-
dition of an employment contract and often not. Remuneration is always a term and con-
dition of the employment contract.”
In Northern Cape Provincial Administration v Hambidge NO & Others [1999] 7 BLLR 698 (LC)
“benefits” was defined as a supplementary advantage conferred on an employee for which
no work was required. A claim to a higher salary or an allowance, therefore, does not
amount to a claim for benefits, but is a matter of mutual interest. Similarly, in SALSTAFF v
Spoornet [2002] 10 BALR 1025 (AMSSA) an acting allowance was held not to be a benefit.
See also SA Post Office Ltd v CCMA & Others [2012] 11 BLLR 1183 (LC); Greeff and Giagas v
Nelson Mandela Bay Municipality (SALGBC, ECD051116, 22 June 2012).
In Labuschagne v Techno Plastics (Pty) Ltd [2005] 6 BALR 610 (MEIBC) a pro rata bonus
was held not to be a benefit.
In AWAWU obo Lotter v Safcol [2002] 5 BALR 470 (CCMA) a claim for a housing allowance
was held to be a claim for a higher salary and, as such, not a benefit. Although transport
allowances and provident funds have been held to be “benefits”, the weight of authority
suggested that both should be considered as forms of remuneration (see SACCAWU v
Garden Route Chalets (Pty) Ltd [1997] 3 BLLR 325 (CCMA); SACWU v Longmile/Unitred (1999)
20 ILJ 244 (CCMA)). Medical aid was held to be a benefit in Solidarity obo Du Plessis v ABB
Services [2005] 8 BALR 820 (MEIBC).
In Van Amstel v Eskom [2002] 9 BALR 995 (CCMA) “benefit” was defined as including a
car allowance. In Dube v Otis Elevators [2005] 7 BALR 695 (MEIBC), however, it was held
that the use of a company car for business purposes does not constitute a benefit as con-
templated by the Act.
In Sithole v Nogwaza NO & Others [1999] 12 BLLR 1348 (LC) the Labour Court held that
a “benefit” must be of a material nature, it must have monetary value for the employee and
be a cost for the employer. Examples given by the court include “pensions, medical aid,
housing subsidies, insurance, social security or membership of a club or society”.
In HOSPERSA & Another v Northern Cape Provincial Administration (2000) 21 ILJ 1066
(LAC) and Eskom v Marshall & Others [2003] 1 BLLR 12 (LC) “benefits” were defined as
advantages to which an employee is entitled ex contractu or ex lege. Claiming a separation
package without proving a contractual entitlement thereto consequently does not consti-
tute an unfair labour practice.
In G4S Security Services v NASGAWU (DA 3/08, 26 November 2009) the Labour Appeal
Court confirmed the prevailing approach of the time and in South African Post Office Ltd v
CCMA [2012] 11 BLLR 1183 (LC) the Labour Court, in following the decisions of the
Labour Appeal Court, confirmed that an acting allowance was not a benefit.
In stark contrast is the Labour Court’s decision in Protekon (Pty) Ltd v CCMA & Others
[2005] 7 BLLR 703 (LC). The Court rejected the argument that a benefit has to be derived
from a contractual or statutory right when it considered travelling concessions to be bene-
fits. According to the Court, disputes concerning benefits fall into two categories: the first
concerns a claim for benefits not presently enjoyed by employees or the reinstatement of
benefits. This category cannot be referred to arbitration and can be resolved through
industrial action. The second category concerns the fairness of the employer’s conduct in
relation to existing benefits. The latter constitutes a dispute of right and can be referred to
arbitration. The fact that an employer has a discretion to provide a benefit “does not . . .
take the benefit outside the ambit of the unfair labour practice jurisdiction provided by
section 186(2)(a) . . . On the contrary, it is clear that the provision was introduced primarily
to permit scrutiny of employer conduct including the exercise of employer discretion in the
context of employee benefits”.
In IMATU obo Verster v Umhlathuze Municipality [2011] 9 BLLR 882 (LC) the Labour Court
decided to ignore the LAC decisions and found support in Protekon to find that an acting
allowance could be arbitrated as an unfair labour practice.
The Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v CCMA & Others [2013] 5 BLLR
434 (LAC) concluded that the distinction between “benefit” and “remuneration”, drawn in
so many of the previous decisions, was artificial and unsustainable and held that the defini-
tion of “benefit” is wide enough to include wages and most, if not all, extras. The Court was
further of the view that not only employer conduct relating to statutory or contractual
entitlements, but also the manner in which an employer exercised its discretion in award-
ing allowances and other payments constituted unfair labour practices. The LAC concurred
in South African Airways (Pty) Ltd v GJJVV [2014] 8 BLLR 748 (LAC) and held that that
deductions from an employee’s accumulated leave pay to pay his salary while he was on
stand-by duty constituted an unfair labour practice relating to benefits.
It appears that an employer is guilty of an unfair labour practice if it fails to train his em-
ployees when there is a contractual obligation to do so. In MITUSA v Portnet [2000] 9 BALR
1037 (CCMA) the employer denied its employees training in breach of a contract to do so
without consultation. It was held that the employer’s conduct constituted an unfair labour
practice. See also SARHWU v Transtel [1999] 2 BALR 224 (IMSSA). The employees in
MITUSA & Others v Transnet Ltd & Others [2002] 11 BLLR 1023 (LAC) failed to prove a
contractual right to training. It was consequently held that the employer did not commit an
unfair labour practice by denying them training.
It remains to be seen how the issue of training affirmative-action employees will be dealt
with in the absence of an agreement, but in light of the provisions of the Employment
Equity Act.
18.6 Unfair suspension and other disciplinary action

An employer is guilty of an unfair labour practice if it acts unfairly when suspending an
employee or imposing a disciplinary sanction short of dismissal.
In Koka v Director-General: Provincial Administration North West Government [1997] 7 BLLR
874 (LC) the Court distinguished between two forms of suspension in that suspension can
be either a form of disciplinary sanction or it can be implemented as a “holding operation”
pending an inquiry into alleged misconduct. The suspension contemplated in the LRA
appears to be of the former type. Although it appears that the suspension of the applicant
was a “holding operation”, it had, according to the Court, the same effect as the second and
should accordingly be treated as a suspension for disciplinary reasons falling within the
definition of unfair labour practice. It was confirmed in Sappi Forests (Pty) Ltd v CCMA &
Others [2009] 3 BLLR 254 (LC) that unfair suspension pending disciplinary (or criminal)
proceedings fell within the scope of the definition of “unfair labour practice”.
Employees are often suspended with pay pending a disciplinary hearing. Suspension with
pay is conceivably not unfair if the employer has a reasonable apprehension that a legit-
imate business interest would be harmed by the employee’s continued presence at the
workplace. See NEHAWU obo Makhethu v Robben Island Museum (2008) 29 ILJ 2318 (CCMA).
In Mabilo v Mpumalanga Provincial Government & Others [1999] 8 BLLR 821 (LC) and Ester-
huizen v Jet Demolition (2011) 32 ILJ 734 (CCMA) it was held that suspension pending a dis-
ciplinary hearing is permissible if it is intended to enable the employer to investigate the
charges against the employee. If there is no fair reason for suspension, the employer’s con-
duct in suspending an employee may very well fall foul of section 186(2)(b).
In SAPO Ltd v Jansen van Vuuren NO & Others [2008] 8 BLLR 798 (LC) it was held that a
suspension must be based on substantive reasons and that a fair procedure must be followed.
The Court observed that employers should refrain from hastily resorting to suspending
employees when there are no valid reasons to do so because suspension has a detrimental
impact on the employee and may prejudice his reputation, chances of advancement and
job security. It is therefore necessary, the Court held, that suspensions be based on substan-
tive reasons and that fair procedures be followed before an employee can be suspended –
that is, the employer must offer the employee an opportunity to be heard before placing
him on suspension.
Whether or not a hearing should be conducted prior to a suspension pending a discip-
linary hearing has received some attention, but the judgments in this regard are contradict-
ory. In Mabilo the Court held that it was not essential to hold a hearing provided that the
audi alteram partem principle is observed. In the Koka judgment and in Venter v South African
Tourism Board [1999] 10 BLLR 1111 (LC) it was held that the employer is not required to
give an employee a hearing before suspending him pending a disciplinary inquiry. In
Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC), however, the Court decided
that an employee is entitled to be heard before being suspended as the suspension damages
his reputation. A similar judgment was handed down in SAPO Ltd v Jansen van Vuuren NO &
Others, supra, and in Dince & Others v Department of Education, North West Province & Others
[2010] 6 BLLR 631 (LC) it was held that suspension (with or without pay) without a hear-
ing is invalid.
The Constitutional Court, in Long v SA Breweries & Others [2018] ZACC 7 (CC), settled
the question by deciding that there is no requirement to afford an employee an opportun-
ity to make representations. Instead, the requirements for a fair precautionary suspension
are that the employer must have a valid reason to suspend (i.e. to protect the integrity of
the investigation) and must consider possible prejudice to the employee, which would be
ameliorated by full pay while on suspension.
The Court in Ngwenya also held that an employee may not be kept on suspension indef-
initely pending disciplinary action. See also Naidoo v Rudolph Chemicals (Pty) Ltd [2008] 6
BALR 497 (NBCCI).
Suspension without pay pending a disciplinary hearing is unfair (Tsaperas & Another v
Clayville Cold Storage (Pty) Ltd [2002] 11 BALR 1225 (CCMA); Chaba v Iselwa Investment CC
[2004] 12 BALR 1534 (CCMA)). However, when an employee or his union seeks postpone-
ment of a disciplinary hearing and such postponement is granted, the employee is not en-
titled to further pay (SAEWA obo Members v Aberdare Cables [2007] 2 BALR 106 (MEIBC)).
Suspension without pay is normally adopted as a disciplinary sanction short of dismissal.
In County Fair v CCMA & Others [1998] 6 BLLR 577 (LC) and South African Breweries Ltd (Beer
Division) v Woolfrey & Others [1999] 5 BLLR 525 (LC) it was held that suspension without
pay is a permissible disciplinary penalty where appropriate. It is submitted that an employee
can be suspended without pay only in circumstances where dismissal would be justified,
were it not for mitigating factors. If suspension is imposed as a disciplinary sanction the
ordinary requirements of substantive and procedural fairness should apply.
In NUMSA obo Tshikana v Delta Motor Corporation [2003] 11 BALR 1302 (CCMA) the
CCMA commissioner held that the employer was not required to convene a formal hearing
before imposing a sanction short of dismissal where the penalty of dismissal was never
contemplated. In casu the employer suspended the employee for one day without pay for
insubordination. The sanction was held to have been justified and consequently did not
constitute an unfair labour practice.
Similarly, in NCAWU obo Tobias & Others v Pick ’n Pay Family Supermarket [2003] 12 BALR
1413 (CCMA) final warnings issued without a hearing to workers who had engaged in a
brief wildcat strike were held to be fair in the circumstances.
In the Breweries case, supra, the Court held that the prohibition on deductions from an
employee’s remuneration in terms of the Basic Conditions of Employment Act does not
preclude an employer from imposing a penalty of suspension without pay.
18.7 Refusal to reinstate or re-employ

Failure or refusal by an employer to reinstate or re-employ a former employee in terms of
an agreement is an unfair labour practice.
“Agreement” may refer to an individual contract, written or verbal, as well as a collective
agreement. An example often encountered in practice is a collective agreement between an
employer and a trade union in terms of which retrenched employees will be re-employed
when jobs become available again.
Some difficulty may arise if the right to be reinstated or re-employed is incorporated in a
collective agreement and the agreement is cancelled or it lapses. Does the individual
employee retain his right to be re-engaged? It is submitted that such terms are to be includ-
ed in individual contracts of employment so that the cancellation of the collective agree-
ment does not deprive employees of the right be reinstated or re-employed.
The definition does not deal with a refusal to re-employ in the absence of an agreement
but, if the employer’s refusal to reinstate or re-employ a former employee is discriminatory,
it may amount to a contravention of section 6 of the Employment Equity Act.
In OCGAWU obo Mapolie v Metlite Alloys [2002] 10 BALR 1058 (CCMA) the employer’s
failure to re-employ an employee in terms of a rehiring agreement and, instead, hiring a
new employee was held to be an unfair labour practice. Similarly, in April and Gen-Tech
Engineering Services CC (2005) 26 ILJ 407 (BCA) the failure to re-employee a retrenched
employee when a position became available (in terms of an agreement to this effect) and
the hiring of a new employee in his place was found to be unfair.
In Mtshali & Others v Nestlé SA [2002] 6 BALR 632 (CCMA) the employer undertook to
re-employ retrenched merchandisers should vacancies arise, provided they were qualified.
Refusal by the employer to re-employ them as packers, for which they were unqualified, was
held not to be an unfair labour practice. See also Bouwer v SA Breweries [2002] 7 BALR 699
(CCMA). Offering retrenched employees temporary employment at a slightly lower rate
than that which they previously earned in terms of a collective agreement was found not to
constitute an unfair labour practice (see NUMSA obo Khanye & Another v Havco Manufactur-
ing (Pty) Ltd [2003] 12 BALR 1349 (MEIBC)).
It is to be noted that, whereas ex-employees generally do not have access to the dispute
resolution mechanisms of the LRA, except after a dismissal, ex-employees have the right to
approach a council or the CCMA for conciliation and arbitration in the event of a failure to
4
reinstate or re-employ in terms of an agreement.
18.8 Probation
A newly hired employee may be put on probation, provided that the probationary period is
reasonable. The purpose of probation is to allow the employer an opportunity to evaluate
the employee’s performance.
A probationary employee is an “employee” and an employer will be well advised to tread
with caution when dealing with misconduct or poor performance by such an employee. If a
probationary employee makes himself guilty of misconduct, the ordinary rules of substan-
tive and procedural fairness apply.
When the probationary employee’s performance does not meet the required standards,
evaluation and assistance by the employer are required. Only in instances where the
employer has taken reasonable steps to help improve the employee’s performance and his
performance does not improve, can dismissal be considered. It must be noted, however,
that poor performance in the event of a probationary employee is treated less strictly than
would be the case with a permanent employee.
Item 8(1) of the Code of Good Practice: Dismissal contained in Schedule 8 of the Act
provides the guidelines for probation:
(1) Probation
(a) An employer may require a newly-hired employee to serve a period of probation before the
appointment of the employee is confirmed.
(b) The purpose of probation is to give the employer an opportunity to evaluate the employee’s
performance before confirming the appointment.
(c) Probation should not be used for purposes not contemplated by this Code to deprive
employees of the status of permanent employment. For example, a practice of dismissing
employees who complete their probation periods and replacing them with newly-hired
employees, is not consistent with the purpose of probation and constitutes an unfair labour
practice.
(d) The period of probation should be determined in advance and be of reasonable duration.
The length of the probationary period should be determined with reference to the nature
of the job and the time it takes to determine the employee’s suitability for continued employ-
ment.
(e) During the probationary period, the employee’s performance should be assessed. An em-
ployer should give an employee reasonable evaluation, instruction, training, guidance or
counselling in order to allow the employee to render a satisfactory service.
(f) If the employer determines that the employee’s performance is below standard, the em-
ployer should advise the employee of any aspects in which the employer considers the
________________________
4 In the discussion of unfair labour practices reference was made to Du Toit et al, Labour Relations Law: A
Comprehensive Guide 6th edn, LexisNexis; Du Toit et al, Labour Law Through The Cases, LexisNexis.
employee to be failing to meet the required performance standards. If the employer be-
lieves that the employee is incompetent, the employer should advise the employee of the
respects in which the employee is not competent. The employer may either extend the
probationary period or dismiss the employee after complying with sub-items (g) or (h), as
the case may be.
(g) The period of probation may only be extended for a reason that relates to the purpose of proba-
tion. The period of extension should not be disproportionate to the legitimate purpose that the
employer seeks to achieve.
(h) An employer may only decide to dismiss an employee or extend the probationary period
after the employer has invited the employee to make representations and has considered
any representations made. A trade union representative or fellow employee may make the
representations on behalf of the employee.
(i) If the employer decides to dismiss the employee or to extend the probationary period, the
employer should advise the employee of his or her rights to refer the matter to a council
having jurisdiction, or to the Commission.
(j) Any person making a decision about the fairness of a dismissal of an employee for poor
work performance during or on expiry of the probationary period ought to accept reasons
for dismissal that may be less compelling than would be the case in dismissals effected after
the completion of the probationary period.
(2) After probation, an employee should not be dismissed for unsatisfactory performance
unless the employer has –
(a) given the employee appropriate evaluation, instruction, training, guidance or counselling;
and
(b) after a reasonable period of time for improvement, the employee continues to perform
unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons
for the unsatisfactory performance and the employer should consider other ways, short of dismis-
sal, to remedy the matter.
(4) In the process, the employee should have the right to be heard and to be assisted by a trade
union representative or a fellow employee.
Any form of unfair treatment of a probationary employee, other than alleged unfair dismis-
sal, can potentially, in terms of section 186(2)(a), constitute an unfair labour practice. An
unfair labour practice in this context must be referred for con-arb.
18.9 Protected Disclosures Act of 2000

The Protected Disclosures Act 26 of 2000 (PDA) was assented to on 1 August 2000 and
came into operation on 16 February 2001.
The PDA was adopted against a background of the necessity to eradicate criminal and
other irregular conduct in organs of State and private bodies. The aim is to create a culture
that will facilitate the disclosure of information by employees of criminal or other irregular
conduct by their employers or fellow employees without fear of reprisal. Comprehensive
statutory guidelines are provided to ensure disclosure in a responsible manner and employ-
ees are encouraged to disclose information by being provided with protection in terms of
the Act.
The objectives of the Act are:
• to protect an employee, whether in the private or the public sector, from being subjected
to an occupational detriment on account of the employee having made a protected dis-
closure;
• to provide for certain remedies in connection with any occupational detriment suffered
on account of having made a protected disclosure; and
• to provide for procedures in terms of which an employee can, in a responsible manner,
disclose information regarding improprieties by his or her employer.
The PDA applies to any protected disclosure made after the date on which the Act came into
operation, irrespective of whether or not the impropriety concerned has occurred before
or after the said date.
Disclosure of information entails disclosure of any conduct of an employer or fellow
employee by an employee who has reason to believe that the information concerned shows
or tends to show one or more of the following:
(a) that a criminal offence has been committed, is being committed or is likely to be com-
mitted;
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation
to which that person is subject;
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur;
(d) that the health or safety of an individual has been, is being or is likely to be endangered;
(e) that the environment has been, is being or is likely to be damaged;
(f) unfair discrimination as contemplated in the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000; or
(g) that any matter referred to in paragraphs (a) to (f) has been, is being or is likely to be
deliberately concealed.
In CWU & Another v Mobile Telephone Networks (Pty) Ltd [2003] 8 BLLR 741 (LC) the unsub-
stantiated allegations of alleged fraud by management was held not to be protected by the
Protected Disclosures Act. According to the Court, a “disclosure” must contain information
regarding a criminal offence, a failure by person to discharge a legal obligation, or a mis-
carriage of justice. In Radebe & Another v Mashoff, Premier of the Free State Province & Others
[2009] 6 BLLR 564 (LC) it was held that a disclosure made by an employee must contain
information revealing one or more of the improprieties listed in the PDA and that it must
be made in good faith, i.e. the employee must have reason to believe in the truth of the
information. A disclosure that does not meet these requirements does not qualify as a
protected disclosure.
An employee who discloses any of the above is protected against reprisal only if the dis-
closure is a “protected disclosure”. A disclosure is protected if it is
• made to a legal practitioner or to a legal adviser with the object of and in the course of
obtaining legal advice,
• made in good faith to an employer. If the employer has not prescribed any procedure
for the disclosure of information any disclosure to him in good faith is protected. If a
procedure has been prescribed, the disclosure must be made in accordance with that
procedure in order to qualify as a protected disclosure. If the prescribed procedure
authorises disclosure to a person other than the employer, disclosure to that person is
considered to be disclosure to the employer and is protected;
• made in good faith to a member of Cabinet or of the Executive Council of a province if
the employee’s employer is an individual appointed in terms of legislation by a member
of Cabinet or of the Executive Council of a province, a body the members of which are
appointed in terms of legislation by a member of Cabinet or of the Executive Council of
a province or an organ of state;
• made in good faith to the Public Protector or the Auditor-General (or a person or body
prescribed for the purposes of this provision) if the relevant impropriety concerns a mat-
ter normally dealt with by the Public Protector, etc., and if the information and/or alle-
gation is substantially true;
• made in good faith to any person or body by an employee who reasonably believes that
the information is substantially true. A disclosure in these circumstances is protected only
if (i) it is made not for personal gain; (ii) if it is reasonable to make the disclosure, having
regard to the identity of the person concerned, the seriousness of the impropriety and
whether it is likely to continue, whether the disclosure is in breach of a duty of confiden-

tiality and public interest; and (iii) if the employee has reason to believe that he or she
will be subjected to an occupational detriment if the disclosure is made to his or her
employer, that evidence relating to the impropriety will be concealed or destroyed if dis-
closed to the employer, if information that is substantially the same has been disclosed
previously and no action was taken within a reasonable period or that the impropriety is
of an exceptionally serious nature.
A protected disclosure does not include a disclosure in respect of which the employee com-
mits an offence by making that disclosure or a disclosure made by a legal adviser to whom
the information was disclosed in the course of obtaining legal advice.
No employee may be subjected to any occupational detriment by his employer on account
or partly on account of having made a protected disclosure. An “occupational detriment”,
in relation to the working environment of an employee, means
(a) being subjected to any disciplinary action;
(b) being dismissed, suspended, demoted, harassed or intimidated;
(c) being transferred against his or her will;
(d) being refused transfer or promotion;
(e) being subjected to a term or condition of employment or retirement which is altered
or kept altered to his or her disadvantage;
(f) being refused a reference or being provided with an adverse reference from his or her
employer;
(g) being denied appointment to any employment, profession or office;
(h) being threatened with any of the actions referred to in paragraphs (a) to (g) above; or
(i) being otherwise adversely affected in respect of his or her employment, profession or
office, including employment opportunities and work security.
If an employee is dismissed because he has made a protected disclosure, the dismissal is
considered an automatically unfair dismissal in terms of section 187 of the LRA. The dis-
pute resolution procedures applicable to automatically unfair dismissals must then be
followed.
In Pedzinski v Andisa Securities (Pty) Ltd (Formerly SCMB Securities (Pty) Ltd) [2006] 2 BLLR
184 (LC) the applicant, who worked on a half-day basis because of health reasons, was
required to work full days after she had reported irregular share-trading involving the
executive director and was subsequently dismissed. The court found that the disclosures
made by her fell squarely within the provisions of the PDA and that her dismissal was
automatically unfair.
All occupational detriments (other than dismissal) are deemed to be unfair labour prac-
tices as contemplated in section 186(2) of the LRA and must be referred to the Labour
Court for adjudication once conciliation has failed.
In Grieve v Denel (Pty) Ltd [2003] 4 BLLR 366 (LC) the applicant prepared a report con-
cerning alleged wrongdoings of a general manager. He was charged with misconduct,
suspended from duty and summoned to attend a disciplinary hearing. This was held to con-
stitute an occupational detriment. In Tshishonga v Minister of Justice and Constitutional Devel-
opment & Another [2007] 4 BLLR 327 (LC) the applicant made serious allegations in the
media about the then minister of the department after having made disclosures to the
Public Protector, the Auditor-General and a cabinet minister some seven months earlier.
He was suspended and charged with misconduct. Although the chairperson of an internal
enquiry found that his disclosure was protected, he was not reinstated. In subsequent unfair
labour practice proceedings in the Labour Court, the Court found that the applicant’s
approach to the media was justifiable and his suspension constituted an unfair labour prac-
tice.
In Xakaza v Ekurhuleni Metropolitan Municipality & Others [2013] 7 BLLR 731 (LC) it was
held that, in order to enjoy protection, an employee must prove that:
• he was an employee;
• he had information which tended to disclose criminal or other misconduct;
• the disclosure of that information was in good faith;
• he had used the correct procedure in making the disclosure; and
• there was a causal link between the disclosure and the occupational detriment.
An employee who has been subjected, is subjected or may be subjected to an occupational
detriment may approach any court, including the Labour Court for appropriate relief or
pursue any other process allowed or prescribed by any law – City of Tshwane Metropolitan
Municipality v Engineering Council of SA & Others [2010] 3 BLLR 229 (SCA); IMATU obo
Bezuidenhout v Witzenberg Municipality & Others [2014] 5 BLLR 443 (LC).
An employee who has made a protected disclosure and who reasonably believes that he
may be adversely affected as a result, must be transferred to another post or position within
the employer’s organisation (or to another organ of state if the State is the employer) if
that employee applies for such a transfer and if it is reasonably possible or practicable to
transfer him. Once transferred, the conditions of employment may not, without the
employee’s written consent, be less favourable than the terms and conditions applicable
immediately before the transfer.
Any provision in a contract of employment or other agreement between an employer
and employee is void if it excludes the operation of any provision of the PDA or precludes
the institution of any proceedings under the Act.
The Companies Act 71 of 2008, in section 159 and with reference to the PDA, extends
5
protection to registered trade unions in certain circumstances.
18.10 Job applicants

Under the old dispensation job-seekers were not protected against the bias of a potential
employer. The now repealed item 2(2) of Schedule 7 offered protection to applicants for
employment by putting them on an equal footing to employees regarding unfair discrimin-
ation issues. These provisions can now be found in section 9 of the Employment Equity Act.
It must be noted that the appointment to a post of an external candidate is not covered by
the LRA. Appointments, or rather non-appointments, are dealt with in the Employment
Equity Act, but then only if unfair discrimination is alleged. In other words, should a job
applicant claim unfair conduct by a prospective employer on grounds other than alleged
unfair discrimination, the dispute cannot be determined as an unfair labour practice under
the LRA. If the job applicant complains of alleged unfair discrimination, the dispute is
conciliated by the CCMA and adjudicated by the Labour Court in terms of Chapter 2 of the
Employment Equity Act.
It is interesting to note that a non-appointment to a post is considered an unfair labour
practice if it falls within the ambit of the Protected Disclosures Act and must be adjudicated
by the Labour Court.
________________________
5 Practitioners should take note of the guidelines published in GG 34572 of 31 August 2011 in terms of
s 10(4)(a) of the Protected Disclosures Act.
18.11 Dispute resolution

The procedure for resolving alleged unfair labour practice disputes is found in section 191
of the LRA.
In terms of section 191(1) an unfair labour practice dispute must be referred in writing
to a council with jurisdiction or to the CCMA (if no council has jurisdiction) for concilia-
tion. The referral to conciliation must be lodged within 90 days from the date the unfair
labour practice was committed or, if it is a later date, within 90 days from the date on which
the employee became aware of the alleged unfair labour practice. If conciliation fails the
dispute may be referred to arbitration (s 191(5)(a)(iv)), except a dispute concerning an
occupational detriment as envisaged in the Protected Disclosures Act, which must be
referred to the Labour Court (s 191(13)). Both a referral to arbitration and a referral to the
Labour Court must be filed within 90 days of the date of the certificate of non-resolution.
Note must be taken that an unfair labour practice in the context of probation must be
referred for con-arb (s 191(5A)).
Arbitration
Refer to CCMA or council

90 days
Conciliation
Refer to CCMA or council

90 days
Unfair labour practice dispute
(excluding occupational detriment)*
* An occupational detriment is referred to the Labour Court once conciliation has failed.
In terms of section 193(4) an arbitrator has the power to determine an unfair labour prac-
tice dispute on terms he deems reasonable, including but not limited to ordering rein-
statement, re-employment or compensation. The compensation awarded to an employee in
respect of an unfair labour practice must be just and equitable in all the circumstances, but
may not be more than the equivalent of 12 months’ remuneration (s 194(3)).
Questions
Question 1
Describe in detail the concept “unfair labour practice” as contemplated in section 186(2) of
the LRA. (20)
Question 2
It is policy and practice in the South African Police Services (SAPS) to advertise posts for
promotion per province. Once applications have been received, a provincial panel is estab-
lished to shortlist the candidates and to recommend one of the shortlisted candidates as the
most suitable candidate for the post. The provincial panel submits the name of the recom-
mended candidate to Head Office and the National Commissioner appoints the recom-
mended candidate to the promotional post.
During 2000 promotional posts for the rank of superintendent were advertised. SAPS
members who were at captain level could apply for these posts. Captain Van der Merwe,
with vast experience in border policing, applied for the post of Superintendent in Border
Policing: Eastern Cape. According to the SAPS policy, border policing is a specialist field
and, therefore, a representative from Head Office: Border Policing had to form part of the
provincial panel selecting the shortlisted and number one candidates. In addition, the policy
required that the preferred candidate should have experience in border policing because
of the specialist functions that had to be performed.
Thirty applications were received for the post of Superintendent: Border Policing in the
Eastern Cape. The provincial panel convened without informing Head Office. As a result
there was no representative from Head Office on the panel. The panel shortlisted five can-
didates for the post, none of whom had any experience in border policing. Captain Van der
Merwe was the only applicant with experience in border policing, but did not make it onto
the shortlist. Captain Ndlovu, one of the shortlisted candidates, was recommended as the
number one candidate and was eventually appointed to the post.
When Captain Van der Merwe challenged his non-promotion he was informed that Cap-
tain Ndlovu had been promoted in accordance with the employment equity plan of the
SAPS. A study of the equity plan revealed that, in the event of a specialist post, experience
and knowledge were of supreme importance and should not be disregarded in favour of
equity. Some further research revealed that none of the applicants for the post in question
had any experience in border policing, neither had they completed any courses in this
field. Captain Van der Merwe was the only applicant who had completed all the required
courses and he had some 12 years’ experience in border policing.
2.1 Analyse the situation and determine whether or not Captain Van der Merwe should
have been promoted to superintendent. (20)
2.2 Assume that, when Captain Van der Merwe referred his dispute for resolution, he did
not claim that he had been discriminated against in the promotion process. He simp-
ly challenged his non-promotion on the grounds of experience and qualifications.
Discuss the dispute resolution procedure that has to be followed in order to have his
dispute resolved. (6)
Hint: There is a bargaining council for safety and security.
2.3 Assume that Captain Van der Merwe alleged that he had been discriminated against
because he is a white male. For this reason he was not promoted. What is the dispute
resolution procedure that must be followed? (6)
Hint: Refer to Chapter 2 of the Employment Equity Act.
Question 3
According to the company policy of Noddy’s Toys Manufacturing (Pty) Ltd promotion to
the more senior occupational levels in the company will be considered once employees
have undergone an evaluation process in ten areas of responsibility, such as managerial
skills, leadership abilities, experience, standard of performance and so forth. A score out of
10 will be awarded for each category and any employee who scores a total of 55 or more out
of 100 will be regarded as suitable for promotion. The suitable candidates will then be inter-
viewed by a panel consisting of senior managers and Human Resources personnel.
When the position of Assistant Manager in the Administration Department becomes
vacant, six employees are evaluated with the view of promoting one of them to the vacant
position. Mrs Plaatjies, a coloured female with three years’ experience in the company and
who scored 58 on her evaluation is eventually promoted to Assistant Manager. Ms Smith, a
white female with ten years’ experience in the company, challenges her non-promotion.
She scored 77 on her evaluation, but was not even called for an interview. Ms Smith claims
that she was the best candidate for the position and would have been promoted had she
been afforded an opportunity to be interviewed. The company counters her claim by

stating that Mrs Plaatjies was an affirmative-action promotion.
3.1 Discuss Ms Smith’s legal position and consider the validity or otherwise of the com-
pany’s argument. (20)
Hint: See PSA obo Badenhorst v Department of Justice (1999) 20 ILJ 253 (CCMA); SAMWU
obo Damon v Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA); Van Rensburg v
Northern Cape Provincial Administration (1997) 18 ILJ 1421 (CCMA); Rafferty v Depart-
ment of the Premier [1998] 8 BALR 1017 (CCMA); PSA obo Dalton & Another v Depart-
ment of Public Works [1998] 9 BALR 1177 (CCMA); NEHAWU obo Thomas v Department
of Justice (2001) 22 ILJ 306 (BCA); Lotter v SA Police Service (2005) 26 ILJ 578 (BCA);
Kruger v SA Police Service (2003) 24 ILJ 477 (BCA).
3.2 Assume that Ms Smith claimed that her score of 77, the highest of all the candidates,
and the fact that she had been acting in the post previously, gave her a legitimate
expectation to be promoted. Discuss the principle of “legitimate expectation” and
decide whether Ms Smith should have been promoted in these circumstances. (20)
Hint: See IMATU obo Coetzer v Stad Tygerberg (1999) 20 ILJ 971 (CCMA); Administrator,
Transvaal & Others v Traub & Others (1989) 10 ILJ 823 (A); Catholic Bishops Publishing
Co & Others v State President & Others 1990 (1) SA 849 (A); Ramoroka v Robben Island
Museum (2012) 33 ILJ 500 (CCMA); UTATU obo Fourie & Another v Transnet Ltd (2002)
23 ILJ 1117 (ARB); Gurarnah v South African Weather Services [2004] 4 BALR 454
(CCMA); Limekaya v Department of Education [2004] 5 BALR 586 (GPSSBC).
Question 4
Mr Chang, a senior financial clerk, is demoted because of poor work performance. He has
not been informed that his performance does not meet the required standards. In fact,
three months ago he received a small performance bonus. After investigation it appears
that the demotion in actual fact occurred as a result of one mistake that Mr Chang had
made during the previous month.
4.1 Is Mr Chang’s employer guilty of an unfair labour practice? Explain. (5)
4.2 Discuss the dispute resolution procedure that must be followed in order to resolve
the dispute between Mr Chang and his company. (5)
4.3 Assume that Mr Chang was demoted, not as described above, but because of the
operational requirements of his employer. Explain whether his employer is guilty of
an unfair labour practice in these circumstances. (5)
4.4 Assume that Mr Chang was demoted, not as described previously, but because he had
sought legal advice from his attorney as to how the corruption and discrimination
prevalent in his workplace could be dealt with. Is the employer guilty of an unfair
labour practice? Explain and include in your answer the dispute resolution proced-
ure, if any, which must be followed in this case. (10)
Hint: See the definition of “occupational detriment” and sections 3 & 4 of the Pro-
tected Disclosures Act.
4.5 Assume that Mr Chang was a new employee, appointed some three months ago, and
that he was on probation. Explain whether his employer can dismiss him for poor
work performance in the circumstances described above. (20)
Question 5
In terms of the equity plan of TriStar Mining Company employees from designated groups
will receive training so that they can advance to more senior positions in the company.
When the trade union that represents a large number of these employees insists that train-
ing commence, management says there are no financial resources available for training.
Management undertakes to budget for training so that the employees can be trained
during the course of the following financial year.
5.1 Is the company guilty of an unfair labour practice by not providing training to the
employees? (5)
5.2 Assume that training was part of the employees’ contracts of employment. Does this
alter your position in 5.1? (5)
Question 6
After a post was advertised five external candidates were shortlisted and invited to inter-
views. One of them was appointed to the post. Ms Pillay, one of the unsuccessful candidates,
believed that she should have been appointed as she was the best candidate. She also
claimed unfair discrimination on the basis of gender and ethnicity. Discuss her legal posi-
tion and what she can do to have her dispute resolved. (10)
Question 7
Mr Fourie is Head of Administration at a public hospital. He is very unhappy because his
immediate superior, a rather dictatorial person, makes life unbearable in the workplace.
When he cannot stand the circumstances any longer he applies for a transfer to another
hospital. His transfer is not approved.
7.1 Is this matter arbitrable in terms of the LRA? (5)
7.2 Assume that Mr Fourie was happy in his work and did not wish to be transferred.
Because he disclosed information regarding corruption in the hospital’s administra-
tion to the provincial government he is transferred without warning or notification.
He wishes to challenge the transfer. Is it possible for him to do so? If so, explain the
procedure that will have to be followed. (10)
Hint: See the definition of “occupational detriment” and ss 3 & 4 of the Protected
Disclosures Act.
Question 8
Identify the nature of the dispute in the following instances and then explain how the dis-
pute can be resolved:
8.1 Employee X is employed at Guestro Wheels. He applies for a supervisory post because
it would mean a promotion for him. A person with lesser qualifications and experi-
ence is appointed as supervisor. X challenges his non-appointment to the post. The
MEIBC (Metal and Engineering Industries Bargaining Council) has jurisdiction in
the sector and area where Guestro Wheels is situated. (5)
8.2 Viwe is an administrative clerk in the Department of Home Affairs. When the post of
Director of Administration is advertised, he applies because the post would mean a
promotion for him. When another clerk is appointed to the post, Viwe claims that he
should have been appointed because he has better qualifications and more experi-
ence than the person who was appointed. (5)
8.3 Bob is employed by Comfy Shoes CC, a small company manufacturing ladies’ and
children’s shoes. He is a Rastafarian, who believes in smoking dagga in order to prac-
tise his religion. His employer is a Muslim and disagrees with Bob’s dagga-smoking
habit. After a few incidents of poor performance by Bob, his employer demotes him.
Bob claims that it is not his performance, but rather his religion that persuaded his
employer to demote him. There is a bargaining council for the leather industry. (5)
8.4 Janet is employed by a travel agency. In terms of her contract of employment she is
entitled to a free air ticket to any overseas destination once a year. This year she
decides to visit the Bahamas in the Caribbean. When she starts planning her trip, her
manager informs her that she would not be entitled to her free ticket because at
times during the course of the year she did not perform up to the required standard.
Janet is so upset that she tells her manager that they are in dispute and that she
would take the matter further. There is no bargaining council. (5)
Question 9
Briefly explain whether the following constitute unfair labour practices:
9. 1 After employee X is found guilty of gross insubordination at a disciplinary hearing,
he is demoted to a position one post level lower than the one he occupied before the
hearing. (2)
9.2 Employee C is transferred from the Department of Foreign Affairs to the Department
of Labour against his will. (2)
9.3 The owner of a coffee shop suspends all five of his employees without pay because
money disappeared from the till. He informs the employees that the purpose of the
suspension is to force the culprit to come forward and admit guilt. (2)
9.4 Employer H unilaterally amends the conditions of employment of employee K so that
K must now work longer hours. (2)
9.5 Employee T deserts his duties. Because the employer now does not have a sufficient
number of employees to finish a job for a client, the client cancels the order. The
employer holds T liable for the loss. (2)
9.6 Employee R resigns after working a notice month. When he leaves his employer
refuses to pay him for his annual leave credits. (2)
9.7 During a retrenchment exercise the employer and the union agree that, when jobs
become available in the company again, the employer will re-employ the retrenched
employees. Four months after some 40 employees were retrenched the company
starts employing people again, but does not consider the retrenched employees for
employment. The retrenched employees insist that they be re-employed. (2)
9.8 Employee J works for the Department of Agriculture. He tells his attorney in con-
fidence of the corrupt and other criminal practices in the Department. His super-
visor finds out that J was responsible for the leak and transfers him to another
department. (2)
Question 10
Peter was acting Human Resources Manager at the National Ports Authority and aspired to
be appointed as the Human Resources Director. The Chief Financial Officer, a good friend
of Peter’s, assured him that the interview process was a mere formality and that he would be
promoted to Human Resources Director. In terms of applicable legislation and company
policy only the Managing Director has the authority to appoint and dismiss employees.
Peter was not popular among the staff and when they got wind of his possible promotion
they decided to air all their grievances against him. They submitted, through their union, a
memorandum and demanded his dismissal. When nothing came of the memorandum the
employees embarked on strike action and vowed that their strike would continue until
Peter was dismissed. In an attempt to calm emotions Peter was placed on suspension with
full pay and benefits and senior management undertook to investigate all the complaints
against him. In the meantime the recruitment process for the position of Human Resources
Director continued, candidates were shortlisted and interviewed and Ms X was appointed.
Peter was not even shortlisted or interviewed for the position. He referred a dispute, claim-
ing that his employer had committed an unfair labour practice by unfairly suspending him
and by failing to promote him to the position of Human Resources Director when he had a
legitimate expectation of promotion. His expectation, according to him, was based on the
promises made by the CFO.
Consider Peter’s claim of a legitimate expectation and decide whether the employer com-
mitted an unfair labour practice. (10)
Question 11
The employees of Suzie’s Clothing Company went on strike. The company applied the “no
work, no pay” rule during the strike. The company’s interpretation of “no pay” was that no
form of remuneration or benefit would be given or accrue to the employees for the dura-
tion of the strike. Consequently, the striking employees lost not only their wages, but also
the employer’s contributions towards their medical and pension funds, their housing allow-
ances and other benefits for the period they were on strike – in effect, they were subjected
to a “no work, no pay, no benefits” policy. Decide whether the company has committed an
unfair labour practice. (10)
Hint: See SAMWU v City of Cape Town & Others (2010) 31 ILJ 724 (LC).
19
DISPUTE RESOLUTION
19.1 Introduction
The nature of the employment relationship is such that disputes between an employer and
employee (or trade union) occur frequently. It is, therefore, important to have procedures
in place through which disputes can be channelled as and when they arise. The statutory
conciliation procedures of the 1956 LRA were ineffective in that they were lengthy and
complex, with the result that the merits of a dispute were often lost in procedural technical-
ities. The absence of procedures for the independent and effective mediation of disputes
was often the reason for resolvable disputes culminating in industrial action.
The 1995 LRA provides a fundamentally new statutory dispute resolution system. It estab-
lishes the Commission for Conciliation, Mediation and Arbitration (CCMA) for the concili-
ation and arbitration of certain disputes, allows bargaining and statutory councils to resolve
disputes that arise within their jurisdictions and also recognises and actively promotes
private dispute resolution procedures negotiated between the parties. In principle, the LRA
provides that all disputes must be referred for conciliation and, if conciliation fails, that
some disputes be arbitrated, whilst others must be adjudicated by the Labour Court.
The Labour Relations Amendment Act of 2002 introduced two new dispute resolution
processes: the con-arb, which is a fusion of the conciliation and arbitration processes, and
the pre-dismissal arbitration, which takes the place of a disciplinary hearing. The “pre-
dismissal arbitration” of the 2002 Amendment Act was renamed an “inquiry by an arbitra-
tor” in the amendments of 2014, but the process is essentially the same.
19.2 Structures for dispute resolution

The structures created by the LRA to resolve disputes are bargaining and statutory councils,
the CCMA, the Labour Court and the Labour Appeal Court.
While the LRA prescribes conciliation and arbitration or Labour Court adjudication for
the resolution of disputes, private dispute resolution is encouraged. Parties may by way of
collective or other agreements decide on private conciliation and arbitration. Such an
agreement takes precedence and the dispute resolution procedure contained in the agree-
ment will have to be followed. In fact, section 147(6) authorises the CCMA to refer a dis-
pute to the appropriate private person or agency for resolution if it is found that a private
agreement between the parties governs the issues in dispute.
403
The structures for dispute resolution are as follows:
Labour Appeal Court Labour Appeal Court
Arbitration Adjudication Arbitration Adjudication
Council Labour Court CCMA Labour Court
No resolution No resolution
Bargaining Council CCMA*

OR
Statutory council
Dispute
*
Some disputes must be referred to the CCMA for conciliation and arbitration even though a
council is in existence, such as disputes over organisational rights, workplace forums, ministerial
determinations, demarcation of sectors and areas, etc. See below.
The resolution of disputes takes place in accordance with a two-step procedure introduced
by the LRA:
Step 1: All disputes must be conciliated.
Step 2: If conciliation fails the dispute must be referred to arbitration by the CCMA or a
council or to adjudication by the Labour Court (in the case of a dispute of right),
or industrial action may be taken (in the case of a dispute of interest).
Conciliation is a mediation process where a neutral third party acts as a facilitator and
assists the parties to settle their dispute. If the dispute is resolved, the parties sign a settle-
ment agreement, meaning that the dispute is out of the way. An outcome certificate is
issued to prove that conciliation was conducted and that the dispute has been settled.
Where conciliation fails and the dispute remains unresolved, the outcome certificate (or
certificate of non-resolution) will indicate that the dispute has not been settled and, de-
pending on the nature of the dispute, any party to the dispute may refer it to arbitration or
to the Labour Court (depending on the nature of the dispute).
Arbitration is in fact an adjudication process undertaken by the CCMA or an accredited
council or private agency and resolves the dispute by way of the arbitrator making a final
decision or judgment, called the arbitration award. There is no right of appeal against an
arbitration award (save in the context of closed shop or agency shop agreements and in
discrimination disputes arbitrated by the CCMA under the EEA). Arbitrations conducted by
the CCMA or councils are subject to the provisions of the LRA only and the Arbitration Act
of 1965 does not apply, whereas the latter Act applies to private arbitrations.
Dispute resolution 405
19.3 Dispute resolution by councils (s 51)
19.3.1 Accreditation
Councils must provide for dispute resolution in their constitutions. If parties to a council
are in dispute, they must resolve their dispute in accordance with the dispute resolution
procedures contained in the constitution.
Councils may perform dispute resolution functions when a non-party is a party to the
dispute only if they have been accredited by the CCMA. In terms of section 127 any council
may apply to the governing body of the CCMA for accreditation by using LRA Form 7.1.
Before an application for accreditation is approved, the governing body will consider a
number of factors, inter alia, whether the human and financial resources of the council are
adequate to conduct dispute resolution that meets the standards of the CCMA. Upon
approval a certificate of accreditation is issued, the name of the council is entered into the
register of accredited councils and the accreditation is published in the Government Gazette.
A council can be accredited to conduct conciliations only or conciliations and arbitra-
tions. However, in terms of section 127 a council cannot be accredited to perform concili-
ation and arbitration functions in respects of certain disputes, such as disputes concerning
organisational rights, workplace forums, ministerial determinations and demarcation issues.
In these instances and in those instances where a council has not been accredited the
CCMA must undertake the conciliation and arbitration proceedings. Similarly, in instances
where a council does not exist or does not have jurisdiction the CCMA must undertake the
dispute resolution functions. See para. 19.4.1 below for a detailed exposition of the disputes
in which the CCMA has exclusive jurisdiction.
Once a council has been accredited it will appoint a panel of conciliators and arbitrators
to conduct dispute resolution functions. The majority of these conciliators and arbitrators
(“the panellists”) are appointed on a part-time basis.
Private agencies also need to be accredited by the CCMA before they may perform
dispute resolution functions. Private agencies apply for accreditation by completing and
submitting LRA Form 7.2 to the CCMA.
19.3.2 Jurisdiction of councils

A council is entrusted with dispute resolution functions within its registered scope, whether
the dispute is between parties to the council or whether one or more of the parties to the
dispute are not parties to the council. Disputes are dealt with in the following manner:
• if a dispute exists between parties to a council the dispute resolution procedure in the
constitution of the council must be followed. Council constitutions invariably provide for
conciliation and arbitration;
• if non-parties are involved in a dispute, but they fall within the registered scope of the
council the dispute must be referred to the council. The council must attempt to resolve
the dispute through conciliation and, if conciliation is unsuccessful, by way of arbitration;
• if one or more of the parties to a dispute fall outside the registered scope of the council
the dispute must be referred to the CCMA.
Generally speaking councils may conciliate and arbitrate the following types of dispute:
• constructive dismissal, including constructive dismissals arising out of transfers in terms
of sections 197 and 197A (unless section 187 is applicable);
• dismissals where the reason for the dismissal is unknown to the employee;
• dismissals in the context of selective re-employment;
• dismissals in terms of section 186(1)(b), i.e. where the employee alleges a reasonable
expectation of the renewal of a fixed-term contract or permanent employment, but the
employer did not renew the contract, renewed it on less favourable terms or did not
appoint the employee permanently;
• dismissal of a probationary employee (con-arb is required);
• unfair labour practices (but excluding unfair labour practices concerning occupational
detriments in terms of the Protected Disclosures Act). An unfair labour practice in the
context of probation is subject to con-arb;
• disputes about the interpretation or application of the council’s constitution or its collect-
ive agreements;
• dismissal for operational requirements can be arbitrated by a council if only one
employee was retrenched or where an employer employed fewer than ten employees and
the retrenched employee or employees elect arbitration rather than adjudication by the
Labour Court;
• disputes about the interpretation or application of sections 198A, 198B and 198C of the
1
LRA;
Compliance issues, i.e. an allegation by an employee or union that an employer has failed
to comply with a council collective agreement or underpaid an employee, are resolved by
way of the council’s compliance procedures. The majority of councils have adopted a
procedure in terms of which a designated agent would issue a compliance order and if an
employer fails to comply, the matter is referred to a compliance arbitration.
In some instances a council has jurisdiction to conciliate a dispute but, should concili-
ation fail, the dispute must be referred to the Labour Court for adjudication; it cannot be
arbitrated. The most common examples of such disputes include disputes over dismissal for
operational requirements (save where only one employee was dismissed or where an
employer employed fewer than ten employees), automatically unfair dismissals, dismissals
because of an unprotected strike and an alleged infringement of freedom of association.
19.3.3 Referral of dispute to council

A dispute must be referred to the council – for conciliation and arbitration – in writing and
a copy of the referral must be served on the opposing party. Proof of such service must be
submitted to the council. The LRA prescribes forms for referrals to the CCMA, but not to
councils. By implication, then, a dispute may be referred to a council in any format as long
as it is in writing. However, the majority of councils have developed forms similar to those
used for CCMA referrals for both conciliation and arbitration and a referring party will
have to use those forms.
A dispute must be referred to a council within the time frame specified in the council’s
constitution or dispute procedure. The LRA does not prescribe time limits for referral to
conciliation, except in the case of dismissals, unfair labour practices and section 198D
referrals. The majority of councils follow the provisions of the LRA by including the pre-
scribed periods of the LRA in their constitutions.
In terms of the LRA a dismissal dispute must be referred to conciliation within 30 days
from the date of the dismissal, an unfair labour practice disputes within 90 days from the
date on which the unfair practice was committed (or the employee became aware of it)
(s 191(1) and a section 198D referral within six months (s 198D(3)). In terms of section
136(1) of the LRA all disputes must be referred to arbitration within 90 days from the date
of the outcome certificate. On good cause shown condonation may be granted for a late
referral in both conciliation and arbitration referrals.
________________________
1 S 198A regulates employment by a TES (labour broker), s 198B regulates fixed-term contracts and
s 198C part-time employment. Disputes concerning the application/interpretation of ss 198A–198C are
referred to a council or the CCMA in terms of s 198D.
19.3.4 Subsidies, fees and confidentiality

An accredited council or agency may charge a fee in accordance with the tariff of fees
determined by the CCMA for performing the functions for which it has been accredited.
An accredited council or private agency may apply to the governing body of the CCMA
for a subsidy to perform those functions for which it is accredited and for the training of
persons to perform those functions.
An accredited council or agency or any person engaged in the performance of its func-
tions is not liable for any loss suffered by any person as a result of any act performed or
omitted in good faith in the course of exercising these functions. A council or agency or
persons employed by them may not disclose information acquired on a confidential basis to
any person or in any court, except where compelled to do so by an order or court.
19.4 Dispute resolution by the CCMA

19.4.1 CCMA jurisdiction
Disputes that cannot be conciliated and arbitrated by a council must be referred to the
CCMA for conciliation and arbitration. Similarly, if there is no council with jurisdiction in a
particular sector and area, the CCMA is responsible for the resolution of disputes arising in
that sector and area.
The CCMA has jurisdiction to conciliate and arbitrate the following disputes:
• constructive dismissal, including constructive dismissals arising out of transfers in terms
of sections 197 and 197A (except in those instances where section 187 is applicable);
• dismissals where the reason for the dismissal is unknown to the employee;
• dismissals in the context of selective re-employment;
• dismissals in terms of section 186(1)(b) – that is, when the employee alleges a reasonable
expectation of the renewal of a fixed-term contract or of permanent employment, but
the employer did not renew the contract, renewed it on less favourable terms or did not
appoint the employee permanently;
• dismissal of a probationary employee (con-arb is required);
• unfair labour practices (but excluding any occupational detriment in terms of the Pro-
tected Disclosures Act, which must be referred to the Labour Court). Unfair labour prac-
tices in the context of probation are subject to con-arb;
• dismissal for operational requirements can be arbitrated by the CCMA if only one
employee was retrenched or where an employer employed fewer than ten employees and
the retrenched employee or employees elect arbitration rather than adjudication by the
Labour Court;
• disputes about the interpretation or application of sections 198A, 198B and 198C of the
2
LRA;
• compliance issues and payment claims can, in terms of the 2018 amendments to the
BCEA, be referred to the CCMA. If a Department of Labour inspector has secured a written
undertaking from an employer or issued a compliance order to an employer because the
employer has failed to comply with the BCEA, NMWA, UIA or UICA, that undertaking or
________________________
2 S 198A regulates employment by a TES (labour broker), s 198B regulates fixed-term contracts and
s 198C part-time employment. Disputes about the interpretation/application of ss 198A–198C are refer-
red to a council or the CCMA in terms of s 198D.
compliance order can be referred to the CCMA to have it made an arbitration award
(ss 64(1)(dA), 68(3) & 73 of the BCEA). If an employer objects to a compliance order
issued by an inspector, the employer can refer a dispute to the CCMA within the period
the employer was supposed to comply (s 69(5) of the BCEA). An employee who earns
below the BCEA threshold can refer payment disputes to the CCMA for con-arb (s 73A of
the BCEA).
In addition to the above disputes, the CCMA has exclusive jurisdiction to conciliate and in
most instances arbitrate the disputes that follow, although a council may be in existence,
the reason being that, in terms of section 127, a council cannot be accredited to deal with
these disputes:
• disputes about the disclosure of information to trade unions or trade union representa-
tives as contemplated in section 16 (disclosure in the context of organisational rights);
• disputes about the exercising of organisational rights. If a trade union has notified an
employer that it seeks to exercise one or more of the organisational rights contained in
Part A of Chapter III of the Act and a collective agreement in this regard cannot be con-
cluded, the dispute must be referred to the CCMA for conciliation and, if necessary, arbi-
tration;
• disputes about the application or interpretation of Part A of Chapter 3, which contains
the provisions relating to organisational rights, may not be dealt with by a council or pri-
vate agency, but must be referred to the CCMA for conciliation and arbitration;
• disputes about the interpretation or application of a collective agreement where the
agreement does not provide for a dispute resolution procedure, where the procedure
contained in the agreement is inoperative or where the dispute procedure in the agree-
ment is frustrated by any party to the agreement (s 24(2));
• disputes about the application or interpretation of agency shop or closed shop agree-
ments;
• disputes about the failure or refusal to admit a registered trade union with a significant
interest in the workplace as a party to a closed shop agreement. If conciliation fails, the
matter must be referred to the Labour Court;
• disputes about the interpretation or application of a ministerial determination in terms
of section 44;
• disputes about the interpretation or application of collective agreements of a council
whose registration has been cancelled (s 61(8));
• disputes about the demarcation of sectors and areas of councils (s 62);
• disputes about the interpretation or application of Parts C to F of Chapter 3 of the Act.
Part C deals with bargaining councils, Part D with bargaining councils in the public ser-
vice, Part E with statutory councils and Part F with general provisions concerning councils.
The disputes referred to here include disputes concerning the constitution of a bargain-
ing council; powers and functions of bargaining and statutory councils; registration of
bargaining and statutory councils; binding nature and/or extension of collective agree-
ments concluded in bargaining councils; appointment and powers of designated agents
of councils; amalgamation of bargaining councils; change in status of statutory councils
and accreditation of a council. Any of these disputes not resolved through conciliation
must be referred to the Labour Court for adjudication;
• disputes about picketing during strikes and lock-outs (s 69(8)). Should conciliation fail,
the matter must be referred to the Labour Court;
• disputes about proposals which are the subject of joint decision-making at a workplace
forum in terms of section 86. Only an employer may refer such a dispute;
• disputes about the disclosure of information to workplace forums;
• disputes about the interpretation or application of Chapter 5 of the Act, which deals with
workplace forums;
• disputes about the interpretation or application of Part C of Chapter 10 of the BCEA
(protection of employee rights). These disputes used to be conciliated by a council or
the CCMA and adjudicated by the Labour Court, but the 2018 amendments changed the
position, giving the CCMA exclusive jurisdiction to conciliate and arbitrate these disputes;
and
• disputes where some but not all parties to the dispute fall within the registered scope of a
council or fall within the registered scope of two or more councils (s 147(4)).
If a dispute has been referred to the CCMA and thereafter it transpires that the dispute
should in fact have been referred elsewhere, the CCMA may refer it to the appropriate
forum or person (agency) or may conduct the arbitration itself, in which case a fee may be
charged. This provision applies where the dispute should have been referred to an accred-
ited council or private agency and to instances where a collective agreement or private
arbitration agreement provides for a dispute resolution procedure by a forum or person
other than the CCMA (s 147).
If an employee who earns less than the BCEA threshold is involved in private dispute
resolution procedures (in terms of a private agreement) and the agreement requires the
employee to pay part of the private dispute resolution costs, the CCMA must undertake the
conciliation and/or arbitration. Similarly, the CCMA must undertake the dispute resolution
process if the person or body appointed to resolve the dispute is not independent of the
employer.
19.4.2 Conciliation (s 135)

Parties to a dispute are, on the one hand, one or more trade unions and/or one or more
employees and, on the other, one or more employers’ organisations and/or one or more
employers.
Referral: Any party to a dispute may refer the dispute to conciliation. In practice it is mostly
employees and/or their unions who refer disputes. Note that disputes concerning joint
decision-making issues between an employer and a workplace forum may, in terms of
section 86(4), be referred by an employer only.
The dispute must be referred to the CCMA for conciliation, using LRA Form 7.11. The
referring party is generally known as the applicant. A copy of the referral must be served on
the opposing party (the respondent) and proof of such delivery must be submitted to the
CCMA.
The LRA does not prescribe time limits for a referral to conciliation, except in the case
of dismissals, unfair labour practices and section 198D referrals. Dismissal disputes must be
referred to the CCMA for conciliation within 30 days of the date of dismissal (s 191(1)). An
unfair labour practice dispute must be referred to conciliation within 90 days of the date on
which the unfair labour practice was committed or the employee became aware of it
(s191(1)). A dispute about the interpretation or application of sections 198A, 198B and
198C must, in terms of section 198D(3), be referred to conciliation within six months. On
good cause shown condonation may be granted for a late referral.
The conciliation process: The CCMA is required to conciliate a dispute within 30 days of
having received the referral (known as the ‘conciliation period’). The parties may agree to
extend the 30-day conciliation period.
As soon as a referral is received the matter is set down for conciliation and a commis-
sioner is appointed to conduct the conciliation. Where a dispute exists in an essential
service the parties may, within seven days after the CCMA has received the referral, agree to
the appointment of a specific commissioner and to his terms of reference.
The commissioner determines the most appropriate process for the resolution of the dis-
pute, which may include mediation, a fact-finding exercise or an advisory award.
Legal representation is not permitted in conciliation proceedings. A party to the dispute
may be represented by a member, office-bearer or official of his trade union or employer’s
organisation or by a director or employee if the party is a juristic person (CCMA rule 25).
Outcome certificate: At the conclusion of the conciliation hearing the commissioner must
issue an outcome certificate (LRA Form 7.12), indicating whether the dispute has been
resolved. If, for whatever reason, conciliation was not conducted and the 30-day conciliation
period has expired, an outcome certificate will be issued even though conciliation has in
fact not taken place. A copy of the certificate must be served on each party or their repre-
sentatives and the original is filed with the CCMA. An outcome certificate which indicates
that the dispute remains unresolved is generally known as a certificate of non-resolution
and entitles any party to the dispute to proceed to arbitration or Labour Court adjudica-
tion.
Settlement agreement: If the conciliation process is successful and the dispute is resolved, the
parties must sign a settlement agreement which finally disposes of the dispute. Such a settle-
ment agreement may be made an order of the Labour Court (s 158(1)(c)) or an arbitration
award (s 142A). In the latter instance the CCMA may, by agreement between the parties or
on application, make a settlement agreement an arbitration award. In this context a settle-
ment agreement means a written agreement in settlement of a dispute that a party has the
right to refer to arbitration or to the Labour Court, excluding disputes that a party is entitled
to refer to arbitration in terms of section 74(4) (essential services) and section 75(7) (main-
tenance services). The disputes excluded here are disputes of mutual interest.
19.4.3 Arbitration (ss 136–138)

Referral: Where a dispute remains unresolved after conciliation and a certificate of non-
resolution has been issued, any party to the dispute may, within 90 days from the date of the
certificate, request the dispute to be resolved through arbitration (s 136(1)). Note that the
90-day period applies in all circumstances, irrespective of the nature of the dispute. A
dispute is referred to arbitration by filing LRA Form 7.13 with the CCMA. A copy of the
referral must be delivered to the respondent and proof of such delivery must be provided to
the CCMA.
If a party refers the dispute to arbitration outside the prescribed 90-day period, the
CCMA may, on good cause shown, condone a late referral.
Appointment of commissioner: When the CCMA receives a referral to arbitration a commissioner
is appointed to conduct the arbitration hearing. It may happen that the conciliating com-
missioner is appointed for the arbitration as well, but a party to the dispute is entitled to
object to such an appointment by filing an objection with the CCMA and serve copies there-
of on all the other parties. Another commissioner will then be appointed.
Parties may request the CCMA to appoint a commissioner of their choice by filing a writ-
ten request within 48 hours after the outcome certificate was issued. The request must list
the names of not more than five commissioners and must state that the request has the sup-
port of all the parties.
A party to a dispute may apply to the Director of the CCMA to have a senior commissioner
appointed. The Director must hear all the parties to the dispute, as well as the conciliating
commissioner and consider, inter alia, the questions of law raised by the dispute and the
complexity of the dispute before deciding whether to appoint a senior commissioner.
Parties engaged in an essential service may, within seven days after the CCMA received
the referral, agree to the appointment of a specific commissioner and his terms of refer-
ence, failing which the CCMA will appoint one.
Arbitration hearing: A commissioner may conduct the arbitration hearing in any manner he
considers appropriate, but is required to deal with the substantial merits of the dispute with
the minimum of legal formalities. Subject to the discretion of the commissioner, a party to
the dispute is entitled to give evidence, call witnesses, cross-examine the witnesses of the
other party and address concluding arguments to the commissioner. If the parties agree,
the arbitration may be suspended and the matter will again be conciliated in an attempt to
settle the dispute.
Representation: In terms of CCMA rule 25(1) a party may be represented by a legal practi-
tioner, a candidate attorney or by a member, office-bearer or official of that party’s regis-
tered trade union or employers’ organisation, or by a director or employee if the party is a
juristic person. Note that legal representation is not automatically allowed in misconduct
and incapacity dismissal disputes and in instances where a compliance order is referred by
an inspector or an employee refers a payment claim to the CCMA. In these cases a party will
have to apply for legal representation (in terms of CCMA rule 25(1)(c)). The commissioner
must consider the complexity of the dispute and the questions of law raised by it, public
interest and the comparative ability of the opposing parties or their representatives to deal
with the arbitration in deciding whether or not to allow legal representation.
The constitutionality of the limit on automatic legal representation in the case of mis-
conduct and incapacity dismissals was challenged in the courts on more than one occasion.
In Netherburn Engineering CC t/a Netherburn Ceramics v Mudau & Others [2003] 10 BLLR 1034
(LC) the Labour Court held that the exclusion of legal representation in misconduct and
incapacity dismissal arbitrations was not unconstitutional and that legal representation was
at the discretion of the commissioner. In The Law Society of the Northern Provinces v Minister of
Labour & Others (NGHC 61197/11, 11 October 2012) the North Gauteng High Court held
the opposite view and declared the limit on legal representation unconstitutional and
invalid. The Court suspended its judgment for three years to afford the CCMA an oppor-
tunity to change rule 25. The CCMA took this decision on appeal and the Supreme Court
of Appeal, in CCMA & Others v Law Society of the Northern Provinces (Incorporated as the Law
Society of Transvaal) [2013] 11 BLLR 1057 (SCA), ruled that CCMA rule 25 was not unconsti-
tutional.
Absence: If the applicant fails to appear in person or to be represented at the arbitration
proceedings the commissioner can dismiss the matter. If the respondent fails to appear or
to be represented, the matter may continue in its absence or may be postponed (s 138(5)).
Essential services: A dispute of mutual interest in an essential service must be arbitrated and
the award issued within 30 days of the date of the certificate of non-resolution (s 139).
Consent to arbitration: In a case that is supposed to be adjudicated by the Labour Court the
parties may agree in writing to have it arbitrated by the CCMA. Such an agreement may be
terminated only with the written consent of all the parties. Any party to the agreement may
apply to the Labour Court to have the agreement varied or set aside, which the Court may
do on good cause. If a party commences proceedings in the Labour Court after the parties
have agreed to arbitration, any party to the proceedings may request the Court to stay the
proceedings and refer the dispute to arbitration or, with the consent of the parties, the
Court may continue with the proceedings, now sitting as an arbitrator and enjoying the
powers of an arbitrator (s 141).
19.4.4 The arbitration award (ss 138–145)

Within 14 days of the conclusion of the arbitration proceedings the commissioner must
issue a signed arbitration award and provide brief reasons for the decision. The CCMA must
serve copies of the award on all parties or their representatives. A commissioner may apply
to the Director of the CCMA for extension of the 14-day period.
The commissioner may make any appropriate arbitration award, which may include an
order giving effect to a collective agreement or a declaratory order (s 138(9)). The commis-
sioner is required to have regard to any code of good practice that has been issued by
NEDLAC.
An award may also include an order for costs. Before the 2002 amendments costs were
awarded, in terms of section 138(10), against a party or representative who acted in a frivo-
lous or vexatious manner by proceeding with or defending the dispute or because of con-
duct during the arbitration proceedings. Section 138(10) was amended in 2002 so that a
costs order is made in accordance with the requirements of law and fairness. This amend-
ment did not take effect immediately because the implementation thereof was made subject
to the CCMA making a rule on costs. The CCMA did not make a rule on costs until April
2015. The test for awarding costs in an arbitration thus changed from “frivolous or vexa-
tious conduct” to “the requirements of the law and fairness” on 1 April 2015.
An arbitration award is final and binding and may be enforced as if it were an order of
the Labour Court in respect of which a writ has been issued, unless it is an advisory arbitra-
tion award (s 143(1)).
An arbitration award may be enforced in terms of section 143(1) only if it has been certi-
fied by the CCMA.
An arbitration award can order a party to pay a sum of money (e.g. compensation) or to
perform a specific act (e.g. reinstate an employee). Compliance with a certified award that
orders the performance of an act may be enforced by way of contempt proceedings in the
Labour Court (s 143(4)).
If an award orders a party to pay a sum of money, the amount ordered earns interest
from the date of the award at the same rate as that prescribed in terms of section 2 of the
Prescribed Rates of Interest Act 55 of 1975, unless the award provides otherwise (s 143(2)).
An arbitration award in terms of which a party is required to pay an amount of money must
be treated for the purpose of enforcing or executing that award as if it were an order of the
Magistrate’s Court.
In terms of section 144 an arbitration award (or ruling) may be varied or rescinded. The
commissioner who issued an award (or another commissioner appointed for this purpose) may
of his own accord or on application by any affected party vary or rescind an award (or ruling).
The grounds for rescission or variation are only the following: the award (or ruling) was errone-
ously sought or made in the absence of a party; the award (or ruling) contains an ambiguity or
obvious error or omission; the award (or ruling) was granted as a result of a mistake common to
the parties to the proceedings; the award (or ruling) was made in the absence of a party, on
good cause shown. In the latter instance the party who seeks a rescission of the award will have
to establish good and acceptable reasons why he was not present at the arbitration proceedings
and will further have to show that he has reasonable prospects of success in the event that he is
afforded an opportunity to present his case.
There is no right of appeal against an arbitration award, but an award can be reviewed in
terms of section 145. The grounds for review are (a) misconduct by the commissioner in
relation to his duties as arbitrator; (b) a gross irregularity committed by the commissioner
during the proceedings; (c) the commissioner exceeding his powers; and (d) an improperly
obtained award. Any party to the dispute may apply to the Labour Court for a review of the
award and an order setting aside the award. The application must be filed with the Labour
Court (in accordance with Labour Court rule 7A) within six weeks from the date on which
the award was served on the parties or, if corruption is alleged, within six weeks from the
date on which the corruption was discovered. If the Court sets the award aside, it may
determine the dispute in any appropriate manner or refer the matter back to the CCMA for
fresh arbitration.
The 2014 amendments added sub-sections (5) to (10) to section 145. In terms of these
provisions an applicant in a review application must apply for a date for the application to
be heard within six months of the filing of the application. Judgment in a review applica-
tion must be handed down as soon as is reasonably possible. The institution of review
proceedings does not suspend the operation of an arbitration award, unless the applicant
furnishes security to the satisfaction of the Labour Court, which must be an amount equal
to the amount of compensation that was ordered or, if reinstatement or re-employment was
ordered, an amount equal to 24 months’ remuneration. A review application interrupts the
running of prescription (as envisaged in the Prescription Act 68 of 1969).
19.4.5 Powers of CCMA commissioners (s 142)

Commissioners have wide powers when attempting to resolve a dispute through conciliation
or arbitration.
A commissioner may subpoena any person, including expert witnesses, for questioning
or to produce any document, book or object relevant to the resolution of the dispute. A
commissioner may administer the oath or accept an affirmation from any person called to
give evidence or be questioned. With the necessary written authorisation a commissioner
may enter and inspect any premises, examine or seize any book, document or object on
those premises and retain them for a reasonable period. In such an event the commissioner
must
issue a receipt for the items seized. Written authorisation to enter and inspect residential
premises must be obtained from the Labour Court and in all other cases from the Director
of the CCMA. The owner or occupier of any premises and all employees are required to
provide all the facilities that the commissioner requires to carry out an inspection.
The CCMA must pay the prescribed witness’ fees to a person who has been subpoenaed
by a commissioner. If a party to the dispute requests the CCMA to issue a subpoena, that
party has to pay the witness’ fee to the CCMA but, on good cause shown, the CCMA may
waive such payment.
The law of privilege as it applies to a witness before a court of law applies equally in pro-
ceedings before a commissioner.
A person is in contempt of the CCMA if he inter alia fails without good cause to appear
before a commissioner or to remain in attendance after having been subpoenaed; refuses to
take the oath or affirmation; refuses to answer questions fully; fails to produce any book,
document or object when requested to do so; insults or disparages a commissioner or
wilfully interrupts the conciliation or arbitration proceedings.
A commissioner may make a finding that a party is in contempt. Such a finding, together
with the record of the proceedings, must be referred by the commissioner to the Labour
Court who may confirm, vary or set aside the finding of the commissioner.
19.5 Con-arb (s 191(5A))

A significant innovation in the context of dispute resolution is the con-arb process, intro-
duced by section 191(5A) of the LRA (following the 2002 amendments). Con-arb is a fusion
of the conciliation and arbitration processes, which means that, as soon as a council or the
CCMA has issued a certificate to the effect that conciliation has failed, the arbitration must
commence immediately.
The con-arb process is compulsory in instances of dismissal or unfair labour practices
relating to probation and also in payment claims referred to by an employee earning below
the BCEA threshold. In these instances the parties are not allowed to object to the process.
Dismissal and unfair labour practice disputes other than in the context of probation
would ordinarily be enrolled for conciliation first and arbitration would follow later (in
some instances many months later). In order to avoid unnecessary delays a council or the
CCMA may enrol these matters for con-arb, but in such an instance the parties may object
to the con-arb process. A written objection must be filed with the CCMA at least seven days
prior to the date of the arbitration hearing.
19.6 Inquiry by arbitrator (s 188A)

Another new process brought about by the 2002 amendments to the LRA is the pre-
dismissal arbitration. After the implementation of the new process the unions objected to
the terminology, arguing that it presupposes a dismissal. The name of the process changed
to “inquiry by an arbitrator” in the 2014 amendments.
This process takes the place of a disciplinary hearing in instances where an employer
alleges misconduct or incapacity on the part of an employee. The rationale behind this
process is to circumvent the prolonged “normal” procedures of internal disciplinary and
appeal hearings and thereafter conciliation and arbitration by having just one hearing. A
final outcome is therefore obtained much sooner than going through all of the normal
processes.
The process is for all intents and purposes an arbitration process. Before the 2014
amendments section 188A indeed referred to “arbitration”. Because of the renaming of the
process section 188A now refers to an “enquiry” but, read in context, the process is in fact
arbitration.
The essential components of an inquiry by an arbitrator in terms of section 188A are as

follows:
• the allegations against the employee must concern misconduct or incapacity;
• the employee must consent to the process after having been advised of the allegations;
• the employer initiates the process (after having obtained the employee’s consent) by
filing the prescribed form and paying the prescribed fee;
• the arbitrator conducts an enquiry in a fashion that a normal arbitration would be
conducted;
• the decision or ruling of the arbitrator has the same status as an arbitration award.
An employee may consent to an inquiry by an arbitrator by signing the prescribed form or
an employee who earns more than the BCEA threshold may consent thereto in his contract
of employment. It is possible that parties consent to the process in a collective agreement. If
such an agreement exists and if the employee in question is subject to that agreement, it is
not necessary to seek the employee’s consent.
When the employee’s consent has been obtained (or where a contract or collective
agreement allows for the process) the employer must file LRA Form 7.19 with the CCMA
(or the appropriate form in a bargaining council) and pay the prescribed fee. The written
consent of the employee (or the contract or collective agreement) must accompany the
form.
Upon receipt of the prescribed form and payment the CCMA (or council) must appoint
an arbitrator to conduct the inquiry. The provisions applicable to arbitrations (excluding
the provisions relating to representation) and the arbitration award discussed above apply
equally to the inquiry by an arbitrator. The decision of the arbitrator has the status of an
arbitration award and sections 143 to 146, relating to the effect of an award, rescissions,
variations and reviews apply.
Representation is regulated by section 188A(5) and not by CCMA or council rules. Dur-
ing the inquiry the parties may be represented by an office-bearer or official of the party’s
registered trade union or employers’ organisation or the employer may be represented by
an employee or a director of the company. By agreement the parties may be represented by
legal practitioners. If agreement to legal representation cannot be obtained any party may
apply for legal representation and the arbitrator will have to rule on the application (having
regard to the issues in CCMA rule 25).
A council may appoint an arbitrator to conduct an inquiry in terms of section 188A only
if it has been accredited by the CCMA to conduct arbitrations.
If an employee in good faith alleges that an inquiry into his alleged misconduct or incap-
acity contravenes the provisions of the Protected Disclosures Act, the employee or employer
may require that an inquiry be conducted by an arbitrator in terms of section 188A. The
holding of a section 188A inquiry in these circumstances and the suspension of an employee
on full pay pending the outcome do not constitute an occupational detriment as contem-
plated in the Protected Disclosures Act.
19.7 Labour Court

The Labour Court is a court of law and equity and has jurisdiction to deal with a variety of
disputes, too many to provide an exhaustive list. The types of disputes that can be enter-
tained by the Labour Court range from employment contract and constitutional matters to
many other labour matters, such as matters arising out of the LRA (e.g. some dismissals)
and the EEA (discrimination). And then the Labour Court has jurisdiction to review deci-
sions made by other forums or bodies in terms of the labour statutes and in some instances
hear appeals (e.g. discrimination disputes arbitrated by the CCMA, awards made by the
CCMA relating to the interpretation/application of closed or agency shop agreements,
section 35 of OHASA appeals).
The list that follows in not intended to be an exhaustive list and provides only the dis-
putes that are regularly dealt with by the Labour Court:
• freedom of association disputes;
• whether strikes and lock-outs are protected and the consequences of the action taken;
• disputes between a trade union and its members (or employers’ organisation and its
members);
• automatically unfair dismissals;
• retrenchments;
• dismissal because an employee refused to join a union in terms of a closed shop agree-
ment;
• dismissals because of an unprotected strike;
• transfers from the old to a new employer in terms of section 197 of the LRA;
• discrimination disputes.
19.8 Dispute resolution of specific disputes

It is important that a dispute be referred to the dispute resolution forum that has jurisdic-
tion. Referring a dispute to the wrong forum causes unnecessary delays and costs.
The table below provides a summary of the types of dispute encountered most often and
shows the dispute resolution forum that has jurisdiction to deal with the dispute.
Council or CCMA Council or CCMA Labour Court

Types of dispute
conciliation arbitration adjudication
1. Unfair dismissal disputes – Chapter 8 of the LRA
Automatically unfair dismissals (s 187) Refer within Refer within
Dismissal in the context of freedom 30 days to council 90 days to Labour
of association; dismissal for partici- or the CCMA for Court for
pating in protected strike; dismissal conciliation adjudication
because an employee refused to do (s 191(5)(b)(i))
work of a protected striker; dismissal
lock-out; dismissal because the
employee is exercising rights in terms
of the LRA or participating in
proceedings in terms of the Act;
dismissal because of pregnancy or
intended pregnancy; dismissal
because of the employer’s discrim-
ination; dismissal in the context of a
transfer in terms of s 197 or 197A;
dismissal because an employee has
made a protected disclosure.
Dismissal based on employer’s Refer within Refer within
operational requirements where s 189 30 days to council 90 days to Labour
is applicable (“minor retrenchment”) or the CCMA for Court for
conciliation adjudication
(s 191(5)(b)(ii))
Dismissal based on operational Refer within Employee(s) can Adjudication by
requirements where only one 30 days to council elect arbitration the Labour Court
employee is retrenched or where or the CCMA for by council or (to be referred
employees of an employer who conciliation CCMA (to be within 90 days)
employs fewer than ten employees are referred within
retrenched (s 191(12)) 90 days) OR
continued

Types of dispute
1. Unfair dismissal disputes – Chapter 8 of the LRA – continued
Disputes over the reason for dismissal When a facilitator Union or em-
based on operational requirements has been ployees may give
where s 189A is applicable (“major appointed, no notice to strike
retrenchments”) conciliation is (s 189A(7)(b)(i))
required. When a OR
facilitator has not
been appointed, within 90 days
refer to council refer dispute to
or CCMA for con- Labour Court for
ciliation after adjudication
30 days from date (s 189A(7)(b)(ii))
of s 189(3) notice Note: The choice
between a strike
and adjudication
is available only if
the substantive
fairness of the
dismissal is
challenged. If
procedure is
challenged, the
strike option is
not available and
the employees or
union can
approach the
Labour Court by
way of application
Entitlement to severance pay Refer to council Refer within
(retrenchment package) only (s 41 of or CCMA for 90 days to council
BCEA) conciliation (no or CCMA for
time limit) arbitration
Dismissal for participating in Refer within Refer within
unprotected strike (s 68(5)) 30 days to council 90 days to Labour
or CCMA for Court for
(s 191(5)(b)(iii))
Dismissal in context of closed shop Refer within Refer within
agreement (s 26) 30 days to council 90 days to Labour
(s 191(5)(b)(iv))
Dismissal for misconduct Refer within 30 Refer within
days to council or 90 days to council
CCMA for or CCMA for
conciliation arbitration
(s 191(5)(a)(i))
Dismissal for incapacity or poor work Refer within Refer within
performance 30 days to council 90 days to council
or CCMA for or CCMA for
(s 191(5)(a)(i))
continued

Types of dispute
1. Unfair dismissal disputes – Chapter 8 of the LRA – continued
Constructive dismissal (s 186(1)(e)) Refer within Refer within
30 days to council 90 days to council
(s 191(5)(a)(ii))
Reason for dismissal unknown to Refer within Refer within
employee 30 days to council 90 days to council
(s 191(5)(a)(iii))
Employee’s fixed-term contract is not Refer within Refer within
renewed, is renewed on less favour- 30 days to council 90 days to council
able terms or employee is not or CCMA for or CCMA for
appointed permanently where he conciliation arbitration
reasonably expected a renewal, a (s 191(5)(a))
renewal on similar terms or a perma-
nent appointment (s 186(1)(b))
Selective re-employment Refer within Refer within
(s 186(1)(d)) 30 days to council 90 days to council
(s 191(5)(a))
Transfer of employment contract in Refer within Refer within
terms of s 197 or 197A where em- 30 days to council 90 days to Labour
ployee terminates contract because or the CCMA for Court for
new employment conditions are less conciliation adjudication
favourable (this could be considered (s 191(5)(b)(i))
an automatically unfair dismissal –
s 187(1)(g))
Dismissal because employee made a Refer within Refer within
protected disclosure in terms of the 30 days to council 90 days to Labour
Protected Disclosures Act or CCMA for Court for
(s 187(1)(h)) conciliation adjudication
(s 191(5)(b)(i))
Dismissal of probationary employee Refer within When concili-
30 days to council ation fails the
or CCMA for con- council or CCMA
arb must commence
arbitration
immediately
(s 191(5A))
2. Unfair labour practices – Chapter 8 of the LRA
Unfair employer conduct relating to Refer within Refer within
promotion, demotion, training or 90 days to council 90 days to council
provision of benefits (s 186(2)(a)) or CCMA for or CCMA for
(s 191(5)(a)(iv))
Unfair suspension or other discip- Refer within Refer within
linary action short of dismissal 90 days to council 90 days to council
(s 186(2)(b)) or CCMA for or CCMA for
(s 191(5)(a)(iv))
continued

Types of dispute
2. Unfair labour practices – Chapter 8 of the LRA – continued
Employer’s failure or refusal to Refer within Refer within
reinstate or re-employ in terms of any 90 days to council 90 days to council
agreement (s 186(2)(c)) or CCMA for or CCMA for
(s 191(5)(a)(iv))
Occupational detriment (other than Refer within Refer within
dismissal) in terms of the Protected 90 days to council 90 days to Labour
Disclosures Act (s 186(2)(d)) or CCMA for Court for
(s 191(13))
Unfair employer conduct relating to Refer within When concili-
probation (other than dismissal) 90 days to council ation fails the
(s 186(2)(a)) or CCMA for council or CCMA
con-arb must commence
arbitration
immediately
(s 191(5A))
3. Freedom of association – Chapter 2 of the LRA
Discrimination or victimisation for Refer to council Refer within
exercising rights to freedom of or the CCMA for 90 days to Labour
association conciliation (no Court for adjudi-
time limit) cation (s 9)
Interpretation or application of Refer to council Refer within
Chapter 2 of the LRA or the CCMA for 90 days to Labour
conciliation (no Court for adjudi-
time limit) cation (s 9)
4. Organisational rights – Part A of Chapter 3 of the LRA
Disputes about disclosure of Refer to CCMA Refer within
information (s 16) (even if there is a 90 days to CCMA
council) for for arbitration
conciliation (no (s 16)
time limit)
Disputes about exercising Refer to CCMA Refer within 90
organisational rights (s 21) (even if there is a days to CCMA for
council) for arbitration(s 21)
conciliation (no
time limit)
Disputes about the application or Refer to CCMA Refer within
interpretation of Part A of Chapter 3 (even if there is a 90 days to CCMA
of the LRA council) for for arbitration
conciliation (no (s 22)
time limit)
5. Collective agreements – Part B of Chapter 3 of the LRA
Dispute about the interpretation or Refer to council Refer within
application of a council collective (no time limit) 90 days to council
agreement for arbitration
continued

Types of dispute
5. Collective agreements – Part B of Chapter 3 of the LRA – continued
BUT if the agreement does not Refer to CCMA Refer within
provide for a dispute resolution (even if there is a 90 days to CCMA
procedure, if the procedure in the council) for for arbitration
agreement is inoperative or if a party conciliation (no
to the agreement frustrates the time limit)
resolution of the dispute (s 24(2))
Disputes about the interpretation or Refer to CCMA Refer within 90 Any person
application of agency shop or closed (even if there is a days to CCMA for bound by an
shop agreements council) for arbitration arbitration award
conciliation (no (s 24(6)) pertaining to the
time limit) application or
interpretation of
an agency or
closed shop
agreement may
appeal against the
award to the
Labour Court
(s 24(7))
Closed shop agreements – refusal to Refer to CCMA Refer within
admit registered union as party to for conciliation 90 days to Labour
closed shop (even if there is a Court for adjudi-
council) (no time cation (s 26(14))
limit)
Dismissal in the context of closed Refer within Refer within
shop agreements 30 days to council 90 days to Labour
(s 191(5)(b)(iv))
6. Bargaining and statutory councils – Parts C, D, E & F of Chapter 3 of the LRA
Disputes about the interpretation or Refer to the Refer within
application of Parts C–F (i.e. disputes CCMA (and not a 90 days to the
concerning the constitution of a council) for Labour Court for
bargaining council; powers and conciliation in adjudication
functions of bargaining and statutory terms of s 63(1) (s 63(4))
councils; registration of bargaining or (no time limit)
statutory councils; binding nature
and/or extension of collective
agreements concluded in bargaining
councils; appointment and powers of
designated agents of councils;
amalgamation of bargaining councils;
change of status of statutory council;
accreditation of a council)
Disputes about jurisdiction between Refer to CCMA Refer within
bargaining councils in the public for conciliation 90 days to CCMA
sector (no time limit) for arbitration
(s 38)
continued

Types of dispute
6. Bargaining and statutory councils – Parts C, D, E & F of Chapter 3 of the LRA – continued
interpretation of agreements for conciliation 90 days to CCMA
regulating employment conditions (not to council) for arbitration
where council’s registration has been (no time limit) (s 61(10)–(13))
cancelled
Disputes about demarcation between Refer to CCMA
sectors and areas for arbitration
(no time limit)
(s 62)
7. Workplace forums – Chapter 5 of the LRA
interpretation of Chapter 5 of the (even if there is a 90 days to CCMA
LRA council), unless for arbitration
collective agree- (s 94)
ment provides
otherwise (no
time limit)
Disputes about matters for joint Employer may refer Employer may refer
decision-making dispute to CCMA dispute within
(even if there is a 90 days to CCMA
council) for arbitration
(no time limit) (s 86(4))
Disclosure of information Refer to CCMA Refer within
(even if there is a 90 days to CCMA
council) (no time for arbitration
limit) (s 89(6))
8. Strikes and lock-outs – Chapter 4 of the LRA
Disputes of interest, e.g. wage Refer to council
disputes or CCMA for
conciliation (no
time limit).If
conciliation fails,
give notice
(48 hours or, if
the State is the
employer, 7 days)
and then strike or
lock-out can
commence
Note: the
conciliating
commissioner
must establish
picketing rules
during
conciliation if
parties do not
have an
agreement on
picketing
continued

Types of dispute
8. Strikes and lock-outs – Chapter 4 of the LRA – continued
Disputes concerning refusal to Refer to council
bargain or CCMA for
conciliation
(no time limit).
If conciliation
fails, obtain
advisory award,
then give notice
(48 hours or
7 days), where-
after strike or
lock-out can
commence
Note: the
conciliating
commissioner
must establish
picketing rules
during
conciliation if
parties do not
have an
agreement on
picketing
Disputes concerning unilateral Refer to council Labour Court
changes to conditions of employment or CCMA for may be
conciliation approached for
(no time limit). interdict
Referral to re-
quire employer to
restore status quo.
If not, give notice
(48 hours or
7 days) and then
strike or lock-out
can commence
If strike is
intended,
conciliating
commissioner
must establish
picketing rules
Disputes about whether a service is an Must be referred
essential service or whether parties to the essential
are engaged in an essential service services com-
mittee (s 73)
continued

Types of dispute
8. Strikes and lock-outs – Chapter 4 of the LRA – continued
Disputes of mutual interest in Refer to council Refer to council or
essential and maintenance services or CCMA for CCMA for arbitra-
conciliation tion (ss 74 & 75).
(no time limit) Arbitration to be
conducted and
award to be issued
within 30 days
from date of out-
come certificate
Disputes concerning picketing Refer to CCMA Refer within
(even if there is a 90 days to Labour
council) (s 69(8)) Court for
(no time limit) adjudication
(s 69(11))
Unprotected strike or lock-out Labour Court
may be
approached for
an interdict
(s 68(1))
9. Disputes about the application or Refer to CCMA or Refer within 90
interpretation of ss 198A–198C council within 6 days to CCMA or
months council
(s 198D(3)) (s 198D(5))
10. Disputes under the Basic Conditions of Employment Act 75 of 1997
Disputes about payment owed to an Refer to council Refer to Those dismissals
employee in terms of the BCEA or or CCMA within arbitration within that have to be
NMWA may be consolidated with a 30 days of date of 90 days from date adjudicated must
dismissal dispute (s 74(2) of BCEA) dismissal and of certificate be referred to
state that out- Court within
standing pay- Arbitrator can, in 90 days from the
ments are also addition to date of the
claimed considering the certificate and
fairness of the the Labour Court
dismissal, also can also
consider the adjudicate the
claim for pay- payment claim
ment
Entitlement to severance pay (s 41 of Refer to council Refer within
BCEA) or the CCMA for 90 days to council
conciliation or the CCMA for
(no time limit) arbitration
continued

Types of dispute
10. Disputes under the Basic Conditions of Employment Act 75 of 1997 – continued
An employee earning below the Refer to CCMA A payment claim
BCEA threshold may refer a dispute (no time limit) is subject to
about outstanding payment in terms compulsory
of the BCEA, NMWA, an employment con-arb
contract, sectoral determination or
collective agreement (s 73A of the
BCEA)
Employees who
fall within the
registered scope
of a council will
have to lodge a
complaint with
the council and
the compliance
route of the
council must be
followed
Written undertakings secured from or Inspector may
compliance orders issued to approach the
employers by DoL inspectors for CCMA to have
failure to comply with the BCEA, the undertaking
NMWA, UIA, UICA or order made an
arbitration award
(ss 68(3) & 73 of
BCEA)
Employers who have been issued with Refer to the The Act is not
a compliance order by a DoL CCMA within the specific about the
inspector and who wish to object to period the process. The
the order employer is CCMA sets these
supposed to matter down for
comply with the con-arb
order
Disputes about the application or Refer to the Refer to the
interpretation of Part C of Chapter 10 CCMA for CCMA for
of the BCEA concerning employees’ conciliation arbitration within
rights and protection of those rights (no time limit) 90 days
(s 80 of BCEA)
continued

Types of dispute
11. Disputes under the Employment Equity Act 55 of 1998
Disputes about unfair discrimination Refer within Sexual Refer within
(excluding dismissals) 6 months to the harassment 90 days to the
CCMA for disputes can be Labour Court for
conciliation (even referred by any adjudication
if there is a employee within (s 10(6) of EEA).
council) 90 days to either
the CCMA or the If the CCMA
Labour Court. arbitrated a
discrimination
Other discrimin- dispute, a right of
ation disputes can appeal lies against
be referred to the that award to the
CCMA within Labour Court.
90 days if the
employee earns
below the BCEA
threshold (or the
dispute can be
referred to the
Labour Court)
Disputes over the application or Refer to the Refer within
interpretation of Part C of Chapter 5 CCMA for con- 90 days to the
of the EEA relating to protection of ciliation (even if Labour Court for
employee rights there is a council) adjudication (s 52
(no time limit) of EEA)
12. Disputes under the Occupational Health and Safety Act 85 of 1993
Any person aggrieved by any decision Appeal to be
of an inspector may appeal to the lodged with the
Chief Inspector and thereafter to the Labour Court
Labour Court within 60 days
after the Chief
Inspector’s de-
cision was given
(s 35 of OHASA
& s 158(1)(i) of
LRA)
13. Disputes under the Skills Development Act 97 of 1998
Disputes over the interpretation or Refer to the Refer within
application of a learnership CCMA for 90 days refer to
agreement or the contract of conciliation the CCMA for
employment of a learner (no time limit) arbitration
(s 19(5) of SDA)
Disputes over the interpretation or Refer to the Refer within
application of Chapter 4 of the Act CCMA for 90 days to the
(dealing with learnerships) conciliation CCMA for
(s 19(5) of SDA)
Disputes over the termination of a Refer to the Refer within
learnership agreement or the CCMA for 90 days to the
learner’s contract of employment conciliation CCMA for
(s 19(5) of SDA)
Questions
Question 1
Describe the nature of the following dispute resolution processes:
1.1 conciliation; (5)
1.2 arbitration; (5)
1.3 con-arb; (2)
1.4 inquiry by an arbitrator in terms of section 188A of the LRA; and (10)
Question 2
Considering each of the following set of circumstances, briefly explain whether a council
has jurisdiction to resolve a dispute:
2.1 the parties to the dispute are all parties to the council; (2)
2.2 one of the parties to the dispute is not a party to the council, but falls within the regis-
tered scope of the council; and (3)
2.3 one of the parties to the dispute falls outside the registered scope of the council. (3)
Question 3
List the disputes over which the CCMA has exclusive jurisdiction. (15)
Question 4
Explain whether an unresolved dispute (after conciliation) can be arbitrated by the CCMA
in an instance where the Act requires adjudication of the dispute by the Labour Court (e.g.
an automatically unfair dismissal). (5)
Hint: See ss 133(2) & 141.
Question 5
A misconduct dismissal dispute exists between employer A and employee B.
5.1 Complete the prescribed referral form to refer the dispute to the CCMA for concilia-
tion. (20)
5.2 Is there any time limit in which the dispute must be referred to conciliation? (2)
5.3 Assume that the matter remains unresolved after conciliation. The employee wishes
to refer his dispute to arbitration. What is the time limit in which he has to lodge his
referral with the CCMA? (2)
5.4 Complete the referral form for arbitration. (20)
5.5 Is the employee entitled to legal representation in this arbitration? Explain with
reference to CCMA rule 25. (5)
5.6 Discuss the nature and effect of the arbitration award issued by the commissioner. (8)
5.7 Assume that the commissioner found in favour of the applicant and determined that
the dismissal was unfair. Discuss the relief that the applicant may be entitled to. (10)
Question 6
Identify the type of dispute in the following scenarios and then explain the dispute reso-
lution procedure for each dispute. Include in your answer any timeframes that may be
applicable:
6.1 The Leather Goods Company employs 100 employees. Of these employees 47 join the
Leather and Textile Workers Union (LTWU). The union then requests management
to deduct union subscription fees from the wages of its members, but management
refuses. The company is a member of the Leather and Hide Employers’ Organisation.
Both the employers’ organisation and LTWU are parties to the Leather Bargaining
Council. (6)
6.2 The Leather Goods Company employs 100 employees. Forty of these employees join
the Leather and Textile Workers Union (LTWU). The union then requests manage-
ment to negotiate a recognition agreement and an increase in wages, but manage-
ment refuses. The company is a member of the Leather and Hide Employers’
organisation. Both the employers’ organisation and LTWU are parties to the Leather
Bargaining Council. (6)
6.3 The Leather Goods Company employs ten employees. Three of these employees join
the Leather and Textile Workers Union (LTWU). The company does not want any
union involvement. When the manager overhears a heated argument among some of
the employees, the three workers who have joined the union are dismissed on the
grounds of misconduct. In actual fact, management does not know who have been
involved in the argument. The Leather Bargaining Council has jurisdiction in this
sector. (6)
6.4 The Leather Goods Company is experiencing financial difficulties and, as a result, 20
employees (all of whom belong to LTWU) have to be retrenched. While manage-
ment and the union are consulting on different aspects regarding the retrenchment,
the union requests access to all the financial statements of the company in order to
determine whether the financial situation is such that it justifies retrenchments. Man-
agement refuses to give any financial information to LTWU. Both the company (via
its employers’ organisation) and LTWU are parties to the bargaining council. (6)
6.5 The parties to the Leather Bargaining Council have concluded a collective agreement
to regulate conditions of employment in the industry. Unfortunately, when the agree-
ment was negotiated, the parties had neglected to incorporate a dispute resolution pro-
cedure in their agreement. Both LTWU and the Leather Goods Company are bound by
this agreement. A dispute arises between LTWU and the company because they cannot
agree on how the provisions relating to sick leave should be interpreted. (6)
6.6 ABC Union and XYZ Company deadlock during negotiations for wage increases. The
union decides to take strike action and, while it is following the prescribed procedures
for a protected strike, management approaches the employees directly and offer a bo-
nus to those employees who would not participate in the strike. The union is under-
standably upset and claims that management is undermining the union. There is no
bargaining council in the sector and area where the company is conducting its busi-
ness. (6)
6.7 Vuyo is employed by the Department of Agriculture. The post of Head of Depart-
ment is advertised internally. Vuyo applies for the position, which will mean a promo-
tion for him. He has been acting in the position for the past four months, he has
been with the Department for four years and he has the qualifications required for
the post. After the interviews an external candidate is appointed to the post. Vuyo
declares a dispute because he believes he deserves the promotion. (5)
6.8 Two policemen are dismissed after they assaulted a prisoner. They believe their dis-
missals are unfair because SAPS as their employer did not follow the prescribed pro-
cedure before dismissing them. (5)
6.9 The PSA is the majority trade union in the Department of Home Affairs. During wage
negotiations the PSA seeks disclosure of the salaries of senior management. The
Department maintains that the information is confidential and refuses to disclose the
salaries. The PSA insists that it is entitled to the information. (6)
6.10 An educator (teacher) at a public school is dismissed for molesting two of the learn-
ers. He believes his dismissal is unfair. (7)
6.11 All the trade unions involved in the public sector and the State as employer concluded
a collective agreement in the PSCBC to regulate leave across all departments in the
public service. When a police officer applies for special sick leave, as provided for in
the collective agreement, SAPS refuses to grant him such leave. He approaches his
union, SAPU, who advises him that SAPS has either interpreted or applied the col-
lective agreement incorrectly because, in terms of the agreement, he is entitled to
leave. (6)
6.12 The majority of the employees at Super-Save Supermarket are confronted with new
employment contracts in terms of which their conditions of employment will change.
They are required inter alia to work longer hours at no additional pay. They refuse to
accept the amended employment conditions with the result that the supermarket
implements the new conditions without their agreement. There is no bargaining
council. (5)
6.13 Employee X is on a six-month probationary period with ABC Bank. During his fourth
month of employment the bank dismisses him because his performance does not
meet the required standards. There is no bargaining council. (5)
6.14 Mohammed is employed by a small clothing shop as a general labourer. He works 40
hours per week at a rate of R17-50 per hour. He hears from a friend that there is in
fact a national minimum wage of R20 and speaks to his manager about it.
(a) The manager refuses to increase his salary to R20 per hour. Mohammed believes
he is being underpaid and wishes to refer a dispute to claim the money he
believes is owed to him. (5)
Hint: See s 73A of the BCEA.
(b) When Mohammed speaks to the manager about increasing his hourly rate, the
manager agrees but tells Mohammed that his annual Christmas bonus will in
future be paid, not as a once-off payment just before Christmas, but will be
used to make up the difference between his current R17-50 and the prescribed
R20 per hour, i.e. the bonus will effectively fall away and will be used to pay the
increase. (5)
Hint: See s 4(8) of the NMWA.
6.15 Mr Zee is a labour inspector in the employ of the Department of Labour. He investi-
gates a complaint that was lodged by two employees working at The Pizza Palace and
discovers that the complaint was justified because the employer makes them work
overtime very often without paying them the overtime rates. Mr Zee issues a compli-
ance order to the owner/manager of The Pizza Palace, ordering him to pay back-pay
owed to the two employees in respect of overtime hours, such payment to be made
within 14 days from the date of the order.
(a) The owner/manager does not comply and does not pay the employees their
back-pay. Mr Zee wants the compliance order enforced. What can he do? (4)
(b) The owner/manager wants to object to the compliance order. How does he go
about it? (4)
Appendix 1
[LRA Form 7.11 replaced by GNR.24 of 22 January 2019.]

Appendix 2
[LRA Form 7.12 replaced by GNR.24 of 22 January 2019.]

(Editorial Note: Image as per original Government Gazette.)
Appendix 3
20
OTHER RELEVANT LEGISLATION
20.1 Introduction
Apart from the Acts covered thus far in this book, which are of a general nature and applic-
able to the majority of employers and employees, there are other, less well-known Acts that
also regulate the employment relationship or aspects thereof in specific sectors, such as the
Public Service Act of 1994 for the public service as a whole, the Employment of Educators
Act 76 of 1998 applicable to educators (teachers) at public schools and the Local Govern-
ment: Municipal Systems Act 32 of 2000 for municipal employees.
It is not only labour legislation that influences the employment relationship; other legis-
lation may have an impact on one or more aspects of the employment relationship and,
therefore, deserves the attention of any labour practitioner. For example, is an employer
permitted to intercept personal e-mails sent to its employee or search an employee’s office
and seize personal documents? Can an employee in the public sector rely on legislation
other than labour legislation to challenge the decisions taken by the State in the employ-
ment context? Is an employer entitled to evict an employee from accommodation provided
by the employer once the employee’s services have been terminated? These and many other
questions arise in the employment context and are not always specifically regulated by
labour legislation. An employer should, however, know how to handle these situations so as
to ensure fair and lawful treatment of its employees.
The purpose of this chapter is to make the reader aware of other relevant legislation that
has some bearing on employment. For this reason only a concise overview of the more im-
portant statutes is given. It is beyond the scope of this publication to provide detailed analyses.
20.2 Other labour legislation

20.2.1 Public Service Act
The Public Service Act 103 of 1994 (PSA), as amended, deals primarily with the organisa-
tion and administration of the public service and, therefore, cannot be classified as labour
legislation. However, because it also covers aspects such as conditions of employment, ter-
mination of service and other employment-related issues in the public sector, it deserves
attention.
The PSA is applicable to employees whether they are employed within or outside South
Africa and to persons who were employed in the public service or who are to be employed
in the public service (unless the Act specifically states the contrary). An employee is a per-
son appointed, whether permanently or temporarily, to a post in a fixed establishment (or
to a post additional to the fixed establishment). Certain categories of persons have been
expressly excluded from the definition of “employee” or from the provisions of the Act,
such as persons appointed in terms of section 12A of the Act, members of SAPS, the perma-
nent force of the SANDF, the Department of Correctional Services, members of the Acad-
emy of Intelligence, the Intelligence Services Agency and the Secret Service and educators
employed in terms of the Employment of Educators Act.
439
The PSA specifically provides for appointments, promotions and transfers, unlike other
legislation such as the Basic Conditions of Employment Act (BCEA) and the Labour Rela-
tions Act (LRA) that are silent on these issues. In making an appointment, due regard must
be had to equality and the other democratic values and principles enshrined in the Con-
stitution. All persons who qualify for an appointment, transfer or promotion must be con-
sidered and the evaluation of these persons must be based on training, skills, competence,
knowledge and the need to redress the imbalances of the past so as to achieve a public ser-
vice broadly representative of the South African people, including representation according
to race, gender and disability (s 11).
Specific requirements are laid down for some appointments such as the appointment of
a person to a permanent post on the establishment. Such a person must, for example, be a
South African citizen, be of good character and be a fit and proper person (s 10). Some
appointments, such as those in Division A or B (s 13), must be made on probation. An
employee may be transferred from his or her post to any other post in the same or any
other department, irrespective of whether the new post is in another division, of a lower or
higher grade or within or outside the Republic (ss 14 & 15).
Chapter 5 of the PSA provides for the termination of services. An employee may be dis-
charged on account of misconduct, incapacity, the redundancy of a post or a number of
other grounds (s 17). In most instances the normal retirement age is 65.
An interesting provision is found in section 17(3) of the PSA (previously section 17(5)).
An employee who absents himself from official duties without permission of his head of
department, office or institution for a period exceeding one calendar month shall be
deemed to have been dismissed on account of misconduct with effect from the date imme-
diately succeeding his last day of attendance at work. If the employee reports for duty at a
later stage, the relevant executive authority may, on good cause shown, approve his rein-
statement (in his former or any other post). The period of absence will in such a case be
deemed unpaid vacation leave.
The effect of section 17(3) is that the employee’s services are terminated by operation of
law. In MEC, Public Works, Northern Province v CCMA & Others [2003] 10 BLLR 1027 (LC) the
Labour Court held that “if the deeming provision of the Act applies, there is no dismissal as
contemplated in section 186 of the LRA. The operation of the deeming provision is not
dependent on any prior decision by the employer; if its requirements are met, employment
terminates by operation of law”. A similar provision is found in the Employment of Edu-
cators Act. It is still open to the employee, however, to show that the requirements of the
deeming provision have not been met. See also Maidi v MEC for Department of Education
[2003] 8 BLLR 761 (LC); Phenithi v Minister of Education [2006] 9 BLLR 821 (SCA); Ma-
hlangu v Minister of Sport and Recreation [2010] JOL 25011 (LC); PSA obo Van der Walt v Min-
ister of Public Enterprise [2010] 1 BLLR 78 (LC); Grootboom v National Prosecuting Authority &
Others [2014] 1 BLLR 1 (CC); Gangaram v MEC for the Department of Health, KwaZulu-Natal &
Others [2017] 11 BLLR 1082 (LAC); PSA obo Mohlala v Minister of Home Affairs & Others
[2018] 12 BLLR 1203 (LC).
In conclusion, the PSA deals with issues such as remuneration, work performed outside
the public service, unauthorised remuneration, grievances and political rights of employees.
20.2.2 Employment of Educators Act

The Employment of Educators Act 76 of 1998 (the Educators Act), as amended, provides
for the employment of educators by the State and for their conditions of employment, dis-
cipline, retirement and discharge.
The Educators Act applies to the employment of educators at public schools, departmental
offices and adult basic education centres (ABET). The Act is one of only a few which pro-
vides a description of who the employer is. The Director-General of the Department of
Basic Education (DoE) is the employer of educators in the service of the Department in
Other relevant legislation 441
posts on the educator establishment of the DoE for all purposes of employment. The Head
of Department is the employer of educators in the service of a provincial department in
posts on the educator establishment of that department for all purposes of employment.
The Minister of Basic Education is the employer of all educators for the purposes of deter-
mining the salaries and other conditions of employment of educators. The Minister is the
employer for the purposes of creating posts on the educator establishment of the DoE and
the MEC is the employer for such purpose in a provincial department. A public school may
establish posts for educators and employ educators additional to the establishment, in
which case the school is the employer of such an educator.
The Minister determines the salaries and other conditions of employment of educators,
subject to the provisions of the LRA and any collective agreement concluded in the Edu-
cation Labour Relations Council (ELRC) (s 4).
Chapter 3 of the Educators Act regulates appointments, promotions and transfers.
Appointments, promotions and transfers to posts at public schools can be made only after
the governing body of the school has made a recommendation to the Head of Department.
In considering applications for appointment, promotion or transfer, the governing body
must ensure that the principles of equity, redress, representativity and democratic values
are complied with. The governing body is further required to adhere to the requirements
and procedures for appointment, promotion and transfer in a collective agreement or
determined by the Minister. After the applications have been considered, the governing
body has to submit to the Head of Department a list of the names of at least three recom-
mended candidates in order of preference. The Head of Department may accept or reject
the recommendation. In the latter instance the Head may appoint any suitable candidate
on a temporary basis or re-advertise the post. If the recommendation is accepted, the Head
may appoint any suitable candidate on the recommended list regardless of that candidate’s
ranking in preference (ss 6–9). An educator may be appointed on probation. If necessary,
the probation period may be extended (ss 7 & 13).
An educator may be discharged on account of misconduct, incapacity or operational re-
quirements in accordance with the requirements of the LRA (s 11). The normal retirement
age is 65, but an educator has the right to retire at 55. An educator may resign by giving 90
days’ notice in writing. If the name of an educator is struck off the register of educators
kept by the South African Council for Educators, he will be deemed to have resigned (s 15).
The Educators Act contains in section 14 a provision similar to the one in section 17(3)
of the PSA in terms of which an educator’s services are terminated by operation of law. If an
educator is absent from work for more than 14 consecutive days without the permission of
the employer, he will be deemed to have been discharged for misconduct. An educator will
be deemed to have been similarly discharged if he assumes other employment while absent
from work without permission, while suspended from duty or while disciplinary steps are
being taken against him.
Chapter 5 of the Educators Act regulates incapacity and misconduct. A Code of Good
Practice, dealing with incapacity and poor work performance, is found in Schedule 1 to the
Act. Sections 17 and 18 of the Act provide an extended list of forms of misconduct. Miscon-
duct is dealt with in terms of the disciplinary code and procedures contained in Schedule 2.
In terms of section 17 an educator must be dismissed if he is found guilty of serious miscon-
duct, including theft, bribery, fraud or an act of corruption with regard to examinations or
promotional reports, sexual assault on a learner or other employee, having a sexual relation-
ship with a learner of the school where he is employed, serious assault on a learner, student
or other employee, or illegal possession of intoxicating, illegal or stupefying substances.
20.2.3 Local Government: Municipal Systems Act

The Local Government: Municipal Systems Act 32 of 2000 (the Municipal Systems Act), as
amended, deals primarily with the organisation and administration of municipalities and,
therefore, cannot be classified as labour legislation. However, because it regulates the

appointment, conditions of employment and related matters of municipal employees it
deserves attention.
A municipality must, in accordance with applicable law and subject to any applicable col-
lective agreement, develop systems and procedures to ensure fair, efficient, effective and
transparent personnel administration. Policies must thus be developed for the recruitment,
selection and appointment of employees, conditions of employment, supervision and man-
agement of staff, the evaluation of performance, promotion, demotion and transfer of staff,
disciplinary and grievance procedures, the investigation of alleged misconduct and dismis-
sal and retrenchment of staff. All policies must be readily accessible to all employees and all
representative unions and must be explained to illiterate persons (s 67).
A municipal council must appoint a municipal manager. The municipal manager, as
head of administration, is responsible for, inter alia, personnel administration and is con-
sequently required to approve a staff establishment for the municipality, provide a job
description for each post on the staff establishment and determine the remuneration and
other conditions of employment of each post (other than for so-called s 57 employees)
(ss 55 & 66).
A municipal council, after consultation with the municipal manager, also appoints man-
agers who are directly accountable to the municipal manager. These managers are gener-
ally referred to as “section 57 employees”.
Both the municipal manager and the other managers are appointed in terms of a written
employment contract, which is subject to an annual performance agreement. The munici-
pal manager and other managers are generally employed for a fixed term. The employment
contract must include details of duties, remuneration, benefits and other terms and condi-
tions of employment and must provide for the renewal of the contract and cancellation
thereof in case of non-compliance with the contract or the performance agreement.
The performance agreement must include performance objectives and targets, the time
frames within which these objectives and targets must be met, standards, procedures and
time frames for evaluating performance and the consequences of sub-standard perform-
ance. The provisions of the Municipal Finance Management Act conferring responsibilities
on the accounting officer of a municipality, forms part of the municipal manager’s per-
formance agreement. Bonuses based on performance may be awarded to a municipal man-
ager or the other managers after the end of a financial year, but only after their perform-
ance has been evaluated and that evaluation has been approved by the municipal council
(ss 56 & 57).
All employees other than the section 57 managers are appointed by the municipal man-
ager. All employees, including the municipal manager and other managers, are subject to a
code of conduct (contained in Schedule 2 to the Act). Copies of the code must be given to
every employee and must be explained to illiterate employees (ss 69 & 70). The code pro-
hibits a staff member inter alia to use his position or any confidential information for per-
sonal gain, disclose confidential information, unduly influence the municipal council or
any person with the view of obtaining an appointment, promotion, privilege or benefit for
him-or herself or for a family member, friend or associate, accept or solicit a reward or gift
or engage in sexual harassment. A staff member is further not allowed to be in arrears to
the municipality for rates and service charges. Any outstanding amount in this regard may
be deducted from the employee’s salary. Any breach of the code constitutes a ground for
dismissal or other disciplinary sanction. Employees are required to report any breach of the
code to a senior.
20.3 Other legislation

Legislation other than labour legislation that has some consequence on employment in-
cludes, inter alia, the Acts outlined below.
20.3.1 Extension of Security of Tenure Act

The Extension of Security of Tenure Act 62 of 1997 (ESTA) was promulgated with the
express intention of providing measures to facilitate and protect long-term security of land
tenure. The Act regulates the conditions of residence on land, the circumstances under
which the right of a person to reside on land may be terminated and the eviction of a
person whose right of residence has been terminated.
Understanding ESTA is important since land rights and labour rights become entwined
in the employment contracts of many farm workers. Historically farms workers have been
among the most vulnerable of employees and have often been subject to great hardship
and social instability as a result of unfair evictions. Where a farm worker’s services are ter-
minated his land tenure rights may be in jeopardy. ESTA seeks to regulate such a situation.
The Act applies to all land other than land in a township, unless the land in the township
has been designated for agriculture. With employment in mind, ESTA applies predomin-
antly to farm workers who live and work on farms (s 2).
The Act refers to an “occupier” of land. An “occupier” is a person who resides on land
which belongs to another person and who had consent or another right in law to reside on
that land on or after 4 February 1997 (s 1). The definition, however, excludes a person who
uses or intends to use the land mainly for industrial, mining, commercial or commercial
farming purposes, unless such a person works the land himself and does not employ any
person other than a family member. A person who has an income in excess of the pre-
scribed amount (prescribed by the Minister of Land Affairs) is also excluded from the def-
inition.
Consent or a lawful right to reside on the land is thus the determining factor. Accordingly,
informal settlers who do not have the land owner’s consent do not enjoy the protection of
the Act.
An occupier has the right to reside on and use the land and to have access to such ser-
vices as were agreed upon with the land owner or person in charge. A person in charge is a
person who has legal authority to give consent to another person’s residing on the land.
The rights of an occupier and of the owner or person in charge need to be balanced. An
occupier has the right to security of tenure, to receive postal or other communication, to
family life in accordance with the culture of that family, to bury a deceased family member
who resided on the land at the time of his death in accordance with the family’s religion or
cultural belief and the right of access to water and educational and health services. A family
member of an occupier has the right to bury the occupier in the land on which he resided
in accordance with their religion or cultural belief. An occupier is also entitled to receive
bona fide visitors at reasonable times and for reasonable periods. The owner or person in
charge may impose reasonable conditions applicable to visitors to safeguard life and prop-
erty or to prevent undue disruption of work on the land. The occupier is liable for any dam-
age caused by a visitor (s 6).
An occupier may not intentionally and unlawfully harm, threaten or intimidate any other
person occupying the land. Neither may an occupier cause material damage to the property
or assist unauthorised persons to establish new dwellings on the land (s 6(3)).
The owner or person in charge may have trespassing animals in the care of an occupier
impounded if the occupier has failed to remove the animals after 72 hours’ notice to re-
move them has been given. The owner or person in charge may not prejudice an occupier
if one of the reasons for the prejudice is the past, present or anticipated exercise of any
legal right (s 7).
Section 8 regulates the termination of the right of residence. Land rights vis-à-vis employ-
ment rights will predominantly be encountered when the services of the employee (farm
worker) are terminated. Section 8 sets out the grounds for termination of the right of resi-
dence. Such a right may be terminated on any lawful ground, provided the termination is
just and equitable, having regard to factors such as the fairness of any agreement or legal
provision on which the owner or person in charge relies, the conduct of the parties giving
rise to the termination, the interests of the parties, including the comparative hardship to
the owner or person in charge, the occupier concerned and any other occupier if the right
of residence is or is not terminated, the existence of a reasonable expectation that an agree-
ment to reside will be renewed and the fairness of the procedure followed by the owner or
person in charge to terminate the right of residence.
If the right of residence arises solely from an employment contract, such as in the case of
many farm and mining workers, that right may be terminated when the occupier/farm
worker resigns or is dismissed in accordance with the provisions of the LRA. If a farm worker
is dismissed and he or she alleges an unfair dismissal, the dismissal dispute is conciliated by
the CCMA and arbitrated by the CCMA or adjudicated by the Labour Court (depending on
the reason for the dismissal). The right of residence of the employee may not be terminated
until such time as the dismissal dispute has been determined by the CCMA or the Labour
Court (s 8(3)).
The right of residence of an occupier who has resided on the land for ten years and who
has reached the age of 60 years may not be terminated, unless that occupier intentionally
and unlawfully harmed other occupiers, damaged the property or allowed unauthorised
persons to erect a dwelling on the land, committed a material breach of contract or a
material breach of the relationship between himself and the owner or the person in charge.
The same provisions apply to an occupier who is an employee or former employee of the
owner or person in charge and who, as a result of ill health, injury or disability, is unable to
supply labour to the owner or person in charge (s 8(4)).
The spouse or dependant of an occupier who is 60 and older and has lived on the land
for more than ten years or of an employee who cannot provide labour because of ill health
is allowed to remain on the land and that right can only be terminated on 12 calendar
months’ written notice, unless the spouse or dependant has committed a material breach
(s 8(5)).
An occupier may be evicted only by way of a court order. An eviction order will be granted
only if the right of residence was terminated in compliance with section 8 and the occupier,
after due notice, has not vacated the land. The owner must give an occupier at least two
months’ notice of his intention to apply for eviction. Section 10 deals with the eviction of a
person who was an occupier on 4 February 1997 and section 11 with the eviction of a per-
son who became an occupier after said date. If the court orders eviction, it will further
order the owner or person in charge to pay just and equitable compensation in respect of
structures erected and improvements made by the occupier and any standing crops planted
by him. The court will also order the payment of any outstanding wages and other payments
due to the employee in terms of the BCEA. The court may order the owner or person in
charge to grant the occupier a fair opportunity to demolish and remove any structures and
improvements erected by him and his predecessors and to tend standing crops to which he
is entitled (s 13).
ESTA provides for the mediation and arbitration of any dispute arising from and out of
the Act (ss 21 & 22). Conceivably an occupier who is an employee can have an unfair labour
practice dispute over benefits conciliated and arbitrated by the CCMA if, for example, he is
denied access to water or deprived from health services. It remains to be seen whether the
courts will consider these rights of an occupier as “benefits” as envisaged by section 186(2)
of the LRA.
If the occupier is an employee, the labour Acts, such as the BCEA, the NMWA, the LRA
and so forth are applicable. Similarly, collective agreements concluded between registered
trade unions and the owner-employer are applicable and, in the case of farm workers, the
sectoral determination for the farming sector is applicable.
20.3.2 Promotion of Access to Information Act

Section 32 of the Constitution provides that everyone has the right of access to information
for the exercise or protection of his rights. The Promotion of Access to Information Act 2
of 2000 (PAIA), as amended, was promulgated to give effect to this constitutional right. The
right of access to information held by a public or private body may be limited only to the
extent that the limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom (s 36 of the Constitution).
The aim of PAIA is to allow access to information in a manner that balances the right to
information with any other rights, including the rights contained in the Bill of Rights. To
achieve this, the Act has established voluntary and mandatory mechanisms and procedures
to ensure access to records of public and private bodies in a swift, inexpensive and uncom-
plicated manner. Ensuring such access is a means of promoting transparency, accountabil-
ity and effective governance of all public and private bodies (s 9).
PAIA applies to records held by both public and private bodies, regardless of when the
records came into existence (s 3). The Act applies to the exclusion of any provision in other
legislation that prohibits or restricts disclosure of a record of a public or private body and
that is materially inconsistent with an object or a specific provision of this Act (s 5).
The Act does not apply to a record of the Cabinet and its committees, a record relating
to the judicial functions of a court of law or a special tribunal, a judicial officer of such a
court or special tribunal, a record of an individual member of Parliament or of a provincial
legislature in that capacity or a document relating to a decision regarding the nomination,
selection or appointment of a judicial officer (s 12).
The Act further does not apply to a record of a public or private body if that record is
requested for the purpose of criminal or civil proceedings, if it is requested after the com-
mencement of such proceedings and the production of or access to that record for criminal
and civil proceedings is provided for in any other law. Any record obtained in contravention
of these provisions is not admissible as evidence in the criminal or civil proceedings, unless
the exclusion of such record will, in the opinion of the court, be detrimental to the interests
of justice (s 7).
A “public body” is any department of State or administration in the national or provincial
sphere of government or any municipality in the local sphere of government or any other
functionary or institution when exercising a power or performing a duty in terms of the Con-
stitution or a provincial constitution or exercising a public power or performing a public
function in terms of any legislation (s 1).
A “private body” is a natural person who carries or has carried on any trade, business or
profession, but only in such capacity, a partnership which carries or has carried on any
trade, business or profession or any former or existing juristic person (excluding a public
body) (s 1).
The Human Rights Committee has published, in terms of section 10 of the Act, a guide
on how to use the Act. The guide includes information on the postal and street addresses,
the phone and fax numbers and e-mail address of the information officer (and deputy) of
every public body, the manner in which information may be requested, assistance available
from the information officers and the Human Rights Committee and the manuals to be
kept by public and private bodies.
A “requester”, that is a person who requests access to a record or a person acting on his
or her behalf, must be given access to a record if he or she has complied with the procedural
requirements of the Act and has included in the request all his or her personal informa-
tion.
A request for access is made in the prescribed form to the information officer of a public
body or to a private body at the address, fax number or e-mail address of that body. The re-
quester must provide sufficient particulars so that the records can be identified. The requester
must also state whether the record is preferred in a particular language and specify a postal
address or fax number to which it must be dispatched. If the request is made on behalf of a
person, proof thereof must be submitted. A person who is unable, because of illiteracy or a
disability, to make a written request, may make the request verbally. The information officer
must then reduce the oral request to writing in the prescribed form and provide a copy
thereof to the requester (ss 18 & 53).
A requester has the right to access regardless of the reason for making such a request if
information is requested from a public body (s 11(3)). In the case of a private body the
requester has to identify the right he or she is seeking to exercise or protect and provide an
explanation of why the requested record is required for the exercise or protection of that
right (s 53).
Access to a record can be refused only on grounds set out in Chapter 4 of the Act (ss 11
& 33). Access will, inter alia, be refused if disclosure involves disclosure of personal infor-
mation, information held by SARS concerning income tax of a third party, trade secrets,
financial, commercial, scientific or technical information of a third party, if disclosure will
constitute a breach of a duty of confidence owed to a third party in terms of an agreement
and if disclosure could reasonably be expected to endanger the life or physical safety of an
individual (s 38).
An information officer of a public body or the head of a private body must, when consid-
ering a request for access to a record, take all reasonable steps to inform a third party to
whom the record relates of the request (s 47). Such a third party may, within 21 days of
receiving the notice, consent to disclosure or submit oral or written representations as to
why the request should be refused (ss 48 & 71).
An information officer of a public body may refuse a request for access to a record if the
request is manifestly frivolous or vexatious or if the work involved in processing the request
will substantially and unreasonably divert the resources of the public body (s 45).
Every public and private body is required to compile – and make available as prescribed
– a manual containing, inter alia, a description of its structure and functions, its postal and
street addresses, its telephone and fax numbers and e-mail address of its information officer
and deputy information officer(s), sufficient detail to facilitate a request for access to a
record, a description of the subjects on which the body holds records and the categories of
records held on each subject and the categories of records which are available without
having to request access (s 14).
An information officer of a public body must, and the head of a private body may, at
least once a year submit to the Minister responsible for the administration of justice a
description of the categories of records that are automatically available for inspection or for
purchase without a person’s having to request access in terms of the Act (ss 15 & 52). These
reports are published in the Government Gazette.
If a document no longer exists or if an information officer of a public body or the head
of a private body has taken all reasonable steps to find the requested record and cannot
find it, he or she must notify the requester accordingly by way of affidavit or affirmation
(ss 23 & 55).
A requester who has been notified that the request for access has been granted must be
given access immediately or, if an access fee is payable, upon payment of that fee (ss 29 &
54). Access to health records is restricted (ss 30 & 61).
Part 4 of the Act provides for an appeal procedure against the decision of an information
officer of a public body. A requester or third party may lodge an internal appeal with the
relevant authority. A court may not be approached for appropriate relief unless the internal
appeal procedure has been exhausted (ss 74 & 78).
20.3.3 Promotion of Administrative Justice Act

The Promotion of Administrative Justice Act 3 of 2000 (PAJA), as amended, was enacted in
consequence of section 33(1) of the Constitution, which provides inter alia that everyone
has the right to administrative action that is lawful, reasonable and procedurally fair. Sec-
tion 33(3) of the Constitution requires that national legislation be enacted to give effect to
this constitutional right and that such legislation provide for the review of administrative
actions by a court or by an independent and impartial tribunal.
The centrepiece of PAJA is thus an “administrative action”. The Act seeks to ensure that
administrative actions are lawful, reasonable and fair. If an action is not fair, lawful or
reasonable it can be challenged.
Section 1 of the Act defines an “administrative action” as
any decision taken, or any failure to take decision, by –
(a) an organ of state, when –
(i) exercising a power in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation;
or
(b) a natural or juristic person, other than an organ of state, when exercising a public power or
performing a public function in terms of an empowering provision, which adversely affects
the rights of any person and which has a direct, external legal effect.
The Act further requires, in section 3, that any administrative action which materially and
adversely affects the rights or legitimate expectations of any person must be procedurally
fair. If not, any person may institute proceedings in a court or a tribunal for the judicial
review of such an action (s 6).
There seems to be a degree of overlap between PAJA and labour rights. Every time pow-
ers are exercised or functions are performed by an ‘organ of state’ in respect of conditions
of employment and related matters, the question arises whether labour or administrative
laws are applicable. According to the Labour Court in SAPU & Another v National Commis-
sioner, SAPS & Another (2005) 26 ILJ 2403 (LC), “[t]he powers and functions concerned,
derive from employment law and are circumscribed by the constitutional rights to fair
labour practices and to engage in collective bargaining. One is instinctively drawn to the
conclusion that the concept of administrative action is not intended to embrace acts
properly regulated by private law”. See also Hlope & Others v Minister of Safety & Security &
Others (2006) 27 ILJ 1003 (LC).
The question is whether the conduct of an organ of state or a person exercising a public
power or performing a public function can be regarded as an “administrative action” as
envisaged in PAJA or whether it constitutes conduct of an employer in accordance with
labour legislation.
This question has received attention in a number of contradictory judgments, the major-
ity of those judgments seeming to favour a separation of labour law and administrative law
and finding that any decision regarding employment should be dealt with under the LRA
(and other labour legislation) and would not be justiciable under PAJA.
In PSA obo Haschke v MEC for Agriculture & Others (2004) 25 ILJ 1750 (LC) the Labour
Court held that “if the right to just administrative action competes or is in conflict with the
right to fair labour practice then the LRA and the BCEA, read with the constitutional right
to fair labour practices, must prevail over the right to administrative justice”.
In Greyvenstein v Kommissaris van die SA Inkomste Diens (2005) 26 ILJ 1395 (T) the Court
considered the submission of the applicant that the decision to institute disciplinary pro-
ceedings against him was an administrative act as envisaged in PAJA. Having had regard to
relevant case law, the Court concluded that the act of instituting disciplinary proceedings
against an employee could not be said to constitute the exercise of a public power or the
performance of a public function and, therefore, did not constitute an administrative
action. The Court based its finding on the fact that section 18 of the South African Revenue
Service Act 34 of 1997 clearly described the terms and conditions of employment between
SARS and its employees. The Court held that “the labour relationship between the
respondent and its employees is not regulated by any other legislation, save the protection
afforded by the constitutional era labour legislation which falls outside the scope of ‘admin-
istrative action’” (p 1402).
In Western Cape Workers Association v Minister of Labour (2005) 26 ILJ 2221 (LC) the Regis-
trar of Labour Relations had deregistered the trade union as a result of its failure to comply
with its statutory trade union obligations. The union appealed against the decision of the
Registrar and argued that the appeal should be dealt with under PAJA. The Court dismissed
the application and distinguished between PAJA and the LRA as follows (at 2223):
The LRA is national legislation designed for labour disputes, including administrative law type
disputes arising in labour law. PAJA is also national legislation. However, I have said elsewhere
that PAJA does not apply to labour disputes. Section 210 of the LRA makes it clear that if there is
any conflict relating to matters dealt with in the LRA between the LRA and the provisions of any
other law except the Constitution, the provisions of the LRA must prevail. The procedures, time-
limits and the requirements of PAJA differ substantially from the LRA. The LRA, for instance,
provides a right of appeal to this court against a decision of the registrar, which is a far wider and
more generous right than the right of review, which is a narrower and more limited right that
PAJA offers. The time-limits in PAJA are not the same as those contemplated in the LRA, which
are tailor-made for labour disputes. In all the circumstances, PAJA does not apply to this dispute.
The High Court in Dunn v Minister of Defence & Others (2005) 26 ILJ 2115 (T) held the
opposite view.
In Hlope & Others v Minister of Safety & Security & Others (2006) 27 ILJ 1003 (LC) the
Labour Court held that the decision of the Area Commissioner of Police to transfer the
applicants, all members of SAPS and engaged as plain-clothes detectives, did not involve the
exercise of a public power or the performance of a public function with a direct external
effect. The decision to transfer them, therefore, did not amount to an administrative action
for the purposes of section 33 of the Constitution or as envisaged in PAJA. The Court fur-
ther observed that collective bargaining and the adjudication of rights disputes in terms of
the LRA are the appropriate channels for balancing employer and employee interests in
the public sector rather than the judicial review of administrative actions (p 1011). See also
Louw v SA Rail Commuter Corporation Ltd & Another (2005) 26 ILJ 1960 (W).
In Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others [2006] 11 BLLR 1
(SCA) an employee of the appellant, a security guard, was dismissed. His alleged unfair
dismissal dispute was arbitrated by the CCMA and the arbitration award ordered his rein-
statement. A review of the arbitration award by the Labour Court and a subsequent appeal
to the Labour Appeal Court against the decision of the Labour Court followed. The SCA
finally had occasion to consider the matter.
In its judgment the SCA dealt with some important issues, such as the distinction be-
tween an appeal and a review, the question as to whether a CCMA arbitration award consti-
tutes and administrative action, as defined, and the applicability of the LRA and/or PAJA.
The SCA held that CCMA arbitrations were administrative actions, that PAJA applied and
that awards were reviewable under PAJA.
The Constitutional Court disagreed with the SCA. In Sidumo & Another v Rustenburg Plat-
inum Mines Ltd & Others [2007] 12 BLLR 1097 (CC) the Constitutional Court confirmed
that a decision or award by a CCMA commissioner constituted an administrative action, but
held that it was not reviewable under PAJA. The Constitutional Court supported the notion
of separating labour laws from administrative laws and the extensive debate about PAJA
versus the LRA has now finally been settled. PAJA is not applicable to decisions in the
labour context.
20.3.4 Intercepting and Monitoring Prohibition Act

The Intercepting and Monitoring Prohibition Act 127 of 1992 protects the interception and
monitoring of communication. No person is allowed to intercept or monitor communica-
tion without the knowledge or permission of the other person concerned. This by implica-
tion means that employers will have to develop and implement clear policies on electronic
communication in the workplace. Employees will have to be made aware of such policies
and possible disciplinary action in the event of breach of a policy. An employer instituting
disciplinary action against an employee in this context must have due regard to Schedule 8
of the LRA, the Code of Good Practice: Dismissal.
20.3.5 Electronic Communications and Transactions Act

In terms of section 86(1) of the Electronic Communications and Transactions Act 25 of
2002 a person who intentionally accesses or intercepts any data without authority or permis-
sion to do so is guilty of an offence. “Data” is defined as electronic representations of infor-
mation in any form.
The Act makes specific provision for the protection of personal information obtained
through electronic transactions. Translated to the employment situation this means that an
employer – or data controller in the parlance of the Act – needs the written permission of
the employee (or data subject) for the collection, collation, processing or disclosure of his
or her personal information (s 51).
In terms of section 51 of the Act the principles for the collection of personal information
with the necessary consent are as follows:
• the employer may not collect information of the employee which is not necessary for the
purpose for which it is required;
• the employer must disclose in writing to the employee the purpose for collecting the
personal information;
• the employer may not use the personal information for a purpose other than for which it
was collected without the written permission of the employee;
• the employer must keep record of the information he collected while it is used and for at
least one year thereafter;
• the employer may not disclose the information to a third party, unless so permitted by
the employee in writing;
• the employer must keep a record of any third party to whom the personal information
was disclosed; and
• the employer must destroy all personal information which has become obsolete.
The ECT Act is further of relevance in the employment context because the LRA allows for
the service and filing of documents by e-mail. The CCMA rules and the rules of many of the
bargaining councils specifically state that notices can be sent by e-mail and that parties can
serve and file documents by e-mail. In these instances the reception theory applies (s 23),
meaning that once the e-mail is in the inbox of the person it was sent to the document has
been served or filed, even before that person has opened and read the e-mail.
20.3.6 Regulation of Interception of Communications and provision of

Communication-related Information Act
The Regulation of Interception of Communications and Provision of Communication-
related Information Act 70 of 2002 (RICA), as amended, regulates inter alia the intercep-
tion and monitoring of private communications in the workplace.
In terms of section 1 of the Act
“intercept” means the aural or other acquisition of the contents of any communication through
the use of any means, including an interception device, so as to make some or all of the contents
of a communication available to a person other than the sender or recipient or intended recipi-
ent of that communication, and includes the –
(a) monitoring of any such communication by means of a monitoring device;
(b) viewing, examination or inspection of the contents of any indirect communication; and
(c) diversion of any indirect communication from its intended destination to any other destina-
tion,
and “interception” has a corresponding meaning.
Section 2 of the Act contains a general prohibition of interception of information, but a
number of exceptions have been created of which sections 4, 5 and 6 are relevant to the
employment relationship.
Section 4 allows a party to a communication, such as a person who makes or receives a

telephone call or sends or receives an e-mail message, to intercept and use the communica-
tion.
Section 5 provides for the interception of any communication under any circumstances,
provided that the person whose communication is being intercepted has consented in
writing prior to such interception.
Section 6 refers to the interception of communication in connection with the carrying
on of a business. This is an important exception to the general prohibition on interception
of information and has a significant impact on the employment relationship. The following
requirements apply:
• the communication must relate to a business or take place in the course of the carrying
on of a business;
• the system controller (i.e. a natural person or, in the case of a partnership, any partner
or person duly authorised by the partnership and, in the case of a juristic person, the
CEO or any person duly authorised) must conduct the interception; alternatively, it must
be done with his consent;
• the interception must be for a defined purpose – for example, to establish the existence
of facts or to detect the unauthorised use of a telecommunications system;
• the telecommunications system being used for the communication must be provided for
use in connection with the business, for example, an employee’s computer; and
• the interception can be done only with the consent (not necessarily in writing) of the per-
son who uses the relevant system or if all reasonable efforts have been made to alert the
user to the possibility of interception.
From the above it follows that an employer will have to obtain the consent of an employee
before private communication addressed to the employee can be intercepted. It is, there-
fore, advisable that an employer develop a policy on the interception and monitoring of in-
formation addressed to employees and that the policy forms part of the employee’s contract
of employment. In this way the employer can obtain the consent of the employee for inter-
ception and counter complaints of unlawful interception or transgression of the Act.
20.3.7 Protection of Personal Information Act

More and more information is being kept in electronic format by various persons and
institutions, from employers to banks, retailers, cellular operators, credit bureaux, direct
marketing organisations, the medical profession and so forth. This information can be
accessed from many different locations and transferred easily and quickly by way of the
Internet. Information can be mixed in any desirable way to create highly sensitive and pri-
vate personal electronic profiles, which can be made available to anyone who is able to pay.
These profiles may also be used, without an individual’s consent and, therefore, without the
accuracy thereof being verified to make important decisions regarding individuals, such as
access to credit, suitability for employment and suitability for life insurance cover. The ques-
tion is no longer how information can be obtained, but whether it should be obtained at all
and, if so, how it should be used and protected.
According to the SA Law Reform Commission “[T]he growth of centralised government
and the rise of massive credit and insurance industries that manage vast computerised data-
bases have turned the modest records of an insular society into a bazaar of data available to
nearly anyone at a price”. The Internet and the advanced technology of the modern times
have simply made information too readily accessible. It was, for example, reported in 2000
that First National Bank had made as many as 170 000 banking account details per month
available to any person who called in and some 1,5 million credit records, obtained from
Vodac, Teljoy, Nedcor and Standard Bank, were accidentally made available on a website.
Every individual has the right to privacy. This right is essentially a right to live one’s own
life with a minimum of interference and includes the right to protection of personal and
confidential information. In terms of our common law an individual’s dignitas is protected

and breach thereof is actionable under the actio iniuriarum. Breach includes inter alia entry
into a private home, reading of private documents, disclosure of private information,
breach of confidentiality, publishing a photograph without the person’s consent and a
medical practitioner divulging medical information.
Some legislation, such as the Employment Equity Act, the Promotion of Access to Infor-
mation Act, the Electronic Communications and Transactions Act, the National Credit Act,
the Basic Conditions of Employment Act and the Labour Relations Act, provide limited but
inadequate protection. Hence the need for a statute that focuses on the protection of
personal information.
In developing such a statute, particularly for the workplace, guidance was sought in the
ILO’s Code of Practice on the Protection of Workers’ Personal Data. The Code deals with
the collection, storage, security and communication of employees’ personal data and sets
out broad guidelines in this regard. Personal data can be obtained from the individual
employee only and only for reasons directly relevant to his or her employment. The duty is
on the employer to justify the collection of the data. Employees and their representatives
should be kept informed of any data collection process, the rules that govern the process
and their rights. The processing of personal data should not have the effect of unfairly
discriminating against anyone and no personal data can be communicated to third parties
without the employee’s explicit consent. Waiver of these rights is not permitted.
Having regard to these guidelines, the Protection of Personal Information Act 4 of 2013
(POPI Act) was assented to on 19 November 2013. The POPI Act awaits full commence-
ment, but a few of its sections took effect on 11 April 2014, i.e. sections 1, 39–54, 112 and
113. These sections deal with definitions, the establishment and functions of an Infor-
mation Regulator and regulations. The Regulator has been established, but is not fully
functional yet. Regulations have been issued (GNR 1383, 14 December 2018).
The POPI Act is aimed at promoting the protection of personal information by public
and private bodies, in harmony with international standards and in a manner that gives
effect to the right of privacy.
The POPI Act, once in full operation, will apply to the automated and manual processing
of personal information by a “responsible party”. A “responsible party” is a public or private
body or any other person which alone or in conjunction with others determines the pur-
pose of and means for processing personal information” (s 1). In short, the POPI Act is
applicable to all organisations that process personal information.
The Act accords a number of rights to persons whose information is being collected,
such as collecting information directly from and with the consent of the person concerned
and collecting information for a specific, explicitly defined and legitimate purpose. Infor-
mation must not be kept for longer than is necessary to achieve the purpose for which it
was collected and specified personal information about a person is prohibited.
“Personal information” includes a variety of information such as information relating to
race, gender, marital status, pregnancy, ethnic or social origin, health, disability, religion
and language; information relating to education or employment history; financial, criminal
or medical history; names and identity numbers, e-mail and physical addresses and tele-
phone numbers; personal views; and private correspondence.
Generally, personal information may not be processed without the consent of the data
subject. The processing of personal information may be justified for exercising a right or
obligation in law, for research purposes or to comply with international Public Law (ss 26–28).
The following are the conditions for the lawful processing of personal information:
• accountability: the responsible party must ensure that all the conditions for lawful pro-
cessing are complied with (s 8);
• processing limitation: personal information may only be processed if collected from the
data subject personally, with his consent and in a manner that does not infringe his priv-
acy (ss 9–12);
• purpose specification: the information must be collected for a specific, explicitly defined
and lawful purpose and should not be retained for any longer than is necessary for
achieving that purpose (ss 13 & 14);
• further processing limitation: the processing of personal information must be compatible
with the purpose for which it was initially collected, taking into account the nature of the
information contractual rights and obligations of the parties (s 15);
• information quality: the responsible party must take reasonably practicable steps to ensure
the information is complete, accurate and not misleading (s 16);
• openness: the responsible party must maintain the information under its responsibility
and must ensure that the data subject is aware of the information that is being collected
and the purpose therefor, the name and address of the responsible party, the conse-
quences of any failure to provide information and any law requiring the collection of the
information (ss 17 & 18);
• security safeguards: the responsible party must secure the integrity and confidentiality of
personal information by taking the necessary measures to prevent any loss, damage,
destruction or unlawful access to the information. The Regulator and data subject must
be notified of any unlawful access to the information (ss 19–22);
• data subject participation: a data subject has the right to ask a responsible party whether it
is holding any personal information and, if so, to provide a record thereof together with
the identity of third parties who have access to the information. A data subject may also
request the responsible party to correct or delete any inaccurate or out-dated infor-
mation (ss 23–25).
In some instances a responsible party needs the authorisation of the Regulator to process
information, such as information relating to criminal conduct, credit reporting and report-
ing information about children to a foreign country (s 57).
The Regulator’s functions include the promotion of an understanding of the lawful pro-
cessing of personal information, the monitoring and enforcement of compliance with legal
requirements, investigating complaints and developing codes of good practice (s 40).
Private and public bodies must appoint information officers, who must be registered with
the Regulator. The information officers must ensure compliance with lawful processing of
information and assist the Regulator in investigations (s 55).
20.3.8 Broad Based Black Economic Empowerment Act

The skewed distribution of wealth along racial lines lies at the heart of the drive for eco-
nomic transformation in South Africa. For more than a century the South African economy
was steered by race-preferring policies that had the effect of severely limiting the access of
black people to economic resources. In the democratic era it has become one of the greatest
challenges of government to find ways to promote the entry of black people into mainstream
economic activity without damaging the economy itself. Black economic empowerment
(BEE) is one of the more recent efforts in this drive. BEE is not just a “change of ownership
of enterprises” in favour of a different group of persons, but is an effort to eradicate the
effects of economic oppression and unlawful expropriation through diverse socio-economic
channels in order to create opportunities in the sharing of South Africa’s wealth. The aim is
not only to distribute wealth, but to expand the country’s economic base and to reduce
poverty in general through a broad-based approach.
The Broad Based Black Economic Empowerment Act 53 of 2003 (the BEE Act) was
promulgated to achieve these goals. Section 1 of the Act defines BEE as follows:
broad-based black economic empowerment means the viable economic empowerment of all black people,
in particular women, workers, youth, people with disabilities and people living in rural areas
through diverse but integrated socio-economic strategies that include, but are not limited to –
(a) increasing the number of black people that manage, own and control enterprises and pro-
ductive assets;
(b) facilitating ownership and management of enterprises and productive assets by communi-
ties, workers, co-operatives and other collective enterprises;
(c) human resources and skills development;
(d) achieving equitable representation in all occupational categories and levels in the work-
force;
(e) preferential procurement from enterprises that are owned or managed by black people; and
(f) investment in enterprises that are owned or managed by black people.
The Act provides for the integration of persons into the economy by way of ownership,
corporate advancement and involvement at small, medium and micro-enterprises level.
Some significant amendments to the Act took effect on 2 October 2014 when the Broad-
Based Black Economic Empowerment Amendment Act 46 of 2013 was enacted.
The BEE Amendment Act defines a “fronting practice” as a transaction, arrangement or
other act or conduct that directly or indirectly undermines or frustrates the achievement of
the objectives of the Act or the implementation of any of its provisions. Any person who
knowingly engages in such a practice commits an offence.
The Act also makes provision for the establishment of the BEE Commission with inter alia
the following functions:
(a) to oversee, supervise and promote adherence with the Act in the interest of the public;
(b) to strengthen and foster collaboration between the public and private sector in order to
promote and safeguard the objectives of broad-based black economic empowerment;
(c) to receive and investigate complaints concerning broad-based black economic empower-
ment;
(d) to promote advocacy, access to opportunities and educational programmes and initia-
tives of broad-based black economic empowerment;
(e) to keep a register of BEE transactions;
(f) to receive and analyse reports concerning BEE compliance from organs of state, public
entities and private sector enterprises; and
(g) to promote good governance and accountability by creating an effective and efficient
environment for the promotion and implementation of BEE.
The Amendment Act also provides for specialist committees appointed by the Minister to
advise the Commission on the management of its resources or the performance of its
functions.
The BEE Act thus addresses the economic empowerment of black people in seven areas,
which can be referred to as a “generic scorecard”. The scorecard is the tool to be used in
determining the BEE status or progress of a business. It is also a measure of standardisation
and allows government and other procurement agencies to apply qualification criteria for
the granting of licences and concessions, to determine the sale of state-owned enterprises
and to develop criteria for entering into partnerships in the private sector.
The seven elements in the scorecard are ownership, skills development, preferential pro-
curement, management, employment equity, enterprise development and social invest-
ment. The first three elements each carry a 20% weight; the remaining elements each carry
a 10% weight. Codes of Good Practice have been published on each of the seven elements.
Each code has its own scorecard to test the BEE status of a business in a particular area.
Once the scorecards have been completed, they have to be submitted to an accredited
verification agency for validation. If validated, a verification certificate is issued and remains
valid for a year after date of issue.
A so-called “softer” scorecard is applicable to small business, referred to as “qualifying
small enterprises”. They can select five of the seven elements of the scorecard and each
element carries a weight of 20%. A small business with an annual turnover below a pre-
scribed amount does not have to comply with any of the elements.
Two of the elements contained in the scorecard are of importance to employment,

namely skills development and employment equity. Employment equity, of course, touches
on the element of management.
“Management” is concerned with the number of black men or women in executive man-
agerial positions or serving on executive board committees. It further refers to effective
control of economic resources and activities. In this context skills development and employ-
ment equity overlap with BEE, conceivably at managerial level only. Practically, “management
control” refers to representation of black people at executive board level, ownership by
blacks, the involvement of black people in the daily operations and senior managerial deci-
sion-making and the representation of black people in financial and management positions.
While BEE, as a tool for black empowerment in business, is separate and distinct from
the Employment Equity Act, the two overlap in the sense that the EEA requires equitable
representation of designated groups at all occupational levels in the workplace, thereby
ensuring that black people must be considered for the higher echelons in an enterprise.
This potentially translates into the empowerment of members of designated groups and
opens the door to senior managerial levels and ownership.
Skills development focuses on the development of employees, improving their skills. In
many instances this can be done in terms of the Skills Development Act. Training and
development contribute to the growth of the economy because skilled employees are more
productive and deliver better results. The proposed Code of Good Practice on the recogni-
tion of skills development provides specific indicators to guide companies in the way their
skills development strategies should contribute to black economic empowerment. This
includes expenditure on continuous professional development and job specific training of
employees as a percentage of the payroll. The proposed scorecard in the Code sets com-
pliance targets as follows: skills development of black employees: 3% of the leviable amount;
skills development on critical or core skills for black employees: 2,6% of the leviable amount;
skills development of black women on critical or core skills: 1.4% of the leviable amount;
skills development of black employees with disabilities: 0,3% of the leviable amount; num-
ber of black employees on SETA accredited learnerships: 5% of the total of employees; black
women on SETA accredited learnerships: 2,5%; and unemployed black people and people
from rural areas on learnerships: 1%.
BEE is not based on the acquisition of ownership or wealth only, but also on the creation
of opportunities in order to widen the economic sphere. Having regard to the purpose of
BEE it is evident that it functions on a different level of the economy as do the labour laws
that regulate the relationship between employer and employee. Although they function on
different levels of the economy, BEE and labour legislation, in particular the Employment
Equity Act, are clearly related as they both facilitate entrance of designated groups into the
economic mainstream, creating opportunities for ownership and sharing in wealth. The
Amendment Act provides that from 2 October 2015 the BEE Act shall prevail if the conflict
specifically relates to a matter dealt with in the Act.
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455
TABLE OF CASES
Page
A
Adcock Ingram Critical Care v CCMA & Others [2001] 9 BLLR 979 (LAC) ............................... 349
Administrator, Transvaal & Others v Traub & Others (1989) 10 ILJ 823 (A) ...................... 384, 398
Alpha Plant and Services (Pty) Ltd v Simmond & Others [2001] 3 BLLR 261 (LAC) ................ 361
Amalgamated Beverage Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232 (LAC) ....................... 363
AMCU & Others v Bafokeng Rasimone Management Services (Pty) Ltd & Others
(2017) 38 ILJ 931 (LC)................................................................................................................. 355
AMCU & Others v Piet Wes Civils CC & Another (2017) 38 ILJ 1128 (LC) ................................. 355
AMCU & Others v Tanker Services (Pty) Ltd (2018) 39 ILJ 2265 (LC)........................................ 355
AMCU v CCMA & Others [2018] 7 BLLR 656 (LC) ...................................................................... 261
AMCU v Hitricon HEMC (Pty) Ltd [2014] 12 BALR 1223 (CCMA) ............................................ 263
Apollo Tyres South Africa (Pty) Ltd v CCMA & Others [2013] 5 BLLR 434 (LAC) ............ 383, 388
April and Gen-Tech Engineering Services CC (2005) 26 ILJ 407 (BCA) ..................................... 390
Arb Electrical Wholesalers (Pty) Ltd v Hibbert [2015] 11 BLLR 1081 (LAC) ............................. 369
Armaments Corporation of South Africa (SOC) Ltd v CCMA & Others
[2016] 5 BLLR 461 (LC).............................................................................................................. 351
Arries v Afric Addressing (Pty) Ltd t/a Afric Mail Advertising [1998] 5 BALR 525 (CCMA) ..... 386
Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & Others (2012) 33 ILJ 363 (LC) ............... 363
Assign Services (Pty) Ltd v CCMA & Others [2015] 11 BLLR 1160 (LC) ............................ 235, 239
Assign Services (Pty) Ltd v CCMA & Others [2018] 9 BLLR 837 (CC) ........................................ 235
Assign Services (Pty) Ltd v Krost Shelving & Racking (Pty) Ltd & Another
[2015] 9 BALR 940 (CCMA) ....................................................................................................... 239
Assign Services (Pty) Ltd v Krost Shelving & Racking (Pty) Ltd & Others
[2018] 9 BLLR 837 (CC) ............................................................................................................. 239
Assign Services (Pty) Ltd v NUMSA & Others [2018] 9 BLLR 837 (CC) ....................................... 76
Assistent-ongevallekommissaris v Ndevu 1980 (1) SA 143 (E) ...................................... 173, 174, 175
Astral Operations Ltd v Parry (2008) 29 ILJ 2668 (LAC) .............................................................. 239
Atkins v Datacentrix (Pty) & Others [2010] 4 BLLR 351 (LC) ..................................................... 346
Aviation Union of SA v SA Airways (Pty) Ltd & Others (2011) 32 ILJ 2681 (CC) ........................ 361
Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others
[2006] 9 BLLR 833 (LC)...................................................................................................... 341, 349
AWAWU obo Lotter v Safcol [2002] 5 BALR 470 (CCMA) ................................................... 383, 387
B
Bakker v CCMA & Others [2018] 6 BLLR 597 (LC) ...................................................................... 344
Basson v Cecil Nurse (Pty) Ltd [2001] 3 BLLR 321 (LC) .............................................................. 361
Bedderson v Sparrow Schools Education Trust (2010) 31 ILJ 1325 (LC) .................................... 369
Biggs v Rand Water & Others (2003) 24 ILJ 1957 (LC) ......................................................... 343, 346
Billion Group (Pty) Ltd v Ntshangase & Others (2018) 39 ILJ 2516 (LC) ................................... 363
Billiton Aluminium SA Ltd v NUMSA & Others [2002] 1 BLLR 38 (LC) .................................... 305
BMW (South Africa) (Pty) Ltd v Van der Walt [2000] 2 BLLR 121 (LAC) .......................... 349–350
BMW (South Africa) v NUMSA & Others [2019] 2 BLLR 107 (LAC) .......................................... 369
Booyens NO v OFS Provincial Administration 1924 OPD 120 ...................................................... 174
457
Page
Booysen v SAPS & Others [2008] 10 BLLR 928 (LC) .................................................................... 341
Bouwer v SA Breweries [2002] 7 BALR 699 (CCMA) .................................................................... 391
Brian Joffe t/a J Air v CCMA & Others [2019] 1 BLLR 1 (LAC) .................................................. 369
Buthelezi v Amalgamated Beverage Industries [1999] 9 BLLR 907 (LC) .................................... 352
C
CAMMBAWU v Goldings Orthopaedic Centre [2006] 2 BALR 170 (CCMA) ............................. 263
Cash Paymaster Services (Pty) Ltd v Browne [2006] 2 BLLR 131 (LAC) ..................................... 369
Catholic Bishops Publishing Co & Others v State President & Others
1990 (1) SA 849 (A) ............................................................................................................. 384, 398
CCMA & Others v Law Society of the Northern Provinces (Incorporated as the Law
Society of Transvaal) [2013] 11 BLLR 1057 (SCA) .................................................................... 411
CEPPWAWU & Another v Glass & Aluminium 2000 CC [2002] 5 BLLR 399 (LAC) .......... 344, 363
CEPPWAWU obo Mahlabane v Sasol Synfuel [2003] 9 BALR 1022 (CCMA) .............................. 387
CEPPWAWU v EH Waltons Packaging [2000] 12 BALR 1375 (CCMA) ....................................... 263
CEPPWAWU v Tekwani Sawmills (Pty) Ltd [2004] 9 BALR 1094 (CCMA) ................................. 275
Ceramic Industries Ltd t/a Betta Sanitaryware v NCBAWU (2) [1997] 18 ILJ 671 (LAC).......... 256
Chaba v Iselwa Investment CC [2004] 12 BALR 1534 (CCMA) .................................................... 390
City of Cape Town v SALGBC & Others [2011] 5 BLLR 504 (LC) ............................................... 350
City of Cape Town v SAMWU obo Jacobs [2009] 9 BLLR 882 (LAC) .......................................... 386
City of Tshwane Metropolitan Municipality v Engineering Council of SA & Others
[2010] 3 BLLR 229 (SCA) ........................................................................................................... 395
Confederation of SA Workers Unions v NEDLAC & Others (2011) 32 ILJ 1831 (SCA) ............. 230
County Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC) ............................ 349
County Fair v CCMA & Others [1998] 6 BLLR 577 (LC) .............................................................. 390
Crawford v Grace Hotel (2000) 21 ILJ 2315 (CCMA) .................................................................... 352
CWIU & Others v Plascon Decorative (Inland) (Pty) Ltd [1998] 12 BLLR 1191 (LAC) ............ 305
CWIU obo Sityana & Mane v Valpa Easigas [2000] 1 BALR 23 (CCMA) ..................................... 386
CWIU v Millner’s Dental Suppliers (Pty) Ltd (1997) 18 ILJ (CCMA) .......................................... 263
CWU & Another v Mobile Telephone Networks (Pty) Ltd [2003] 8 BLLR 741 (LC) ................. 393
D
Datt v Gunnebo Industries (Pty) Ltd [2009] 5 BLLR 449 (LC) .................................................... 369
Davies v Clean Deale CC (1992) 13 ILJ 1230 (IC) .......................................................................... 352
De Beer v SA Export Connection CC t/a Global Paws [2008] 1 BLLR 36 (LC) .................. 344, 368
Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC) .................................................................... 233
Department of Correctional Services & Another v Police & Prisons Civil Rights Union &
Others (2011) 32 ILJ 2629 (LAC)................................................................................................ 113
Department of Correctional Services & Another v POPCRU & Others
[2012] 2 BLLR 110 (LAC) ........................................................................................................... 368
Department of Correctional Services v POPCRU & Others [2013] 7 BLLR 639 (SCA) .............. 346
Department of Home Affairs & Another v Ndlovu & Others (2014) 35 ILJ 3340 (LAC) ............ 350
Department of Justice v CCMA & Others [2004] 4 BLLR 297 (LAC) .......................................... 386
Dierks v UNISA [1999] 4 BLLR 304 (LC) ...................................................................................... 343
Dince & Others v Department of Education, North West Province & Others
[2010] 6 BLLR 631 (LC).............................................................................................................. 389
Director General: Office of the Premier, Western Cape v SA Medical Association
obo Broens (2011) 32 ILJ 1077 (LC) .......................................................................................... 360
Dr D C Kemp t/a Centralmed v Rawlins [2009] 11 BLLR 1027 (LAC) ........................................ 361
Dube v Otis Elevators [2005] 7 BALR 695 (MEIBC) ..................................................................... 388
Dunn v Minister of Defence & Others (2005) 26 ILJ 2115 (T) ..................................................... 448
E
Ekurhuleni Metropolitan Municipality Germiston and Van Rooyen
(2002) 23 ILJ 1104 (ARB) ................................................................................................................ 8
Eastern Cape Tourism Board v CCMA [2010] 11 BLLR 1161 (LC) ............................................. 344
Table of cases 459
Page
Elliot International (Pty) Ltd v Veloo & Others [2014] 10 BLLR 955 (LAC) .............................. 345
Enviroserv Waste Management v Interwaste (Pty) Ltd t/a
Interwaste Environmental Solutions & Others (2016) 37 ILJ 959 (LC) .................................... 361
Equity Aviation Services (Pty) Ltd v CCMA & Others [2008] 12 BLLR 1129 (CC) ..................... 360
Equity Aviation Services (Pty) Ltd v SATAWU & Others [2009] 10 BLLR 933 (LAC) ................ 305
Eskom Holdings v NUM obo Coetzee [2018] 2 BLLR 176 (LC) .................................................. 382
Eskom v Marshall & Others [2003] 1 BLLR 12 (LC) ..................................................................... 388
Eskom v Mokoena [1997] 8 BLLR 965 (LAC) ............................................................................... 352
Eskom v NUM [2003] 6 BALR 708 (CCMA) .................................................................................. 382
Esterhuizen v Jet Demolition (2011) 32 ILJ 734 (CCMA) ............................................................. 389
Evans v Japanese School of Johannesburg [2006] 12 BLLR 1146 (LC)........................................ 346
Ex parte Commissioner: In re Manthe 1979 (4) SA 812 (E) ......................................... 173, 174, 175
F
FAWU v Earlybird Farm (Pty) Ltd [2003] 1 BLLR 20 (LC) .......................................................... 305
FAWU v The Cold Chain & Others [2007] 7 BLLR 638 (LC) ....................................... 258, 345, 369
G
G4S Security Services v NASGAWU (DA 3/08, 26 November 2009) ............................................ 388
Gangaram v MEC for the Department of Health, KwaZulu-Natal & Others
[2017] 11 BLLR 1082 (LAC) ....................................................................................................... 440
Gaylard v Telkom SA Ltd [1998] 9 BLLR 942 (LC)....................................................................... 387
General Motors (Pty) Ltd v NUMSA obo Ruiters (2015) 36 ILJ 1492 (LAC) ............................... 352
General Motors SA (Pty) Ltd v NUMSA (2018) 39 ILJ 1316 (LC) ................................................ 352
Glass v University of Zululand [2006] 4 BALR 388 (CCMA) ......................................................... 387
Govender v SA Stevedores Service Co Ltd (1981) 2 ILJ 27 (IC) ............................................ 174, 175
Greeff and Giagas v Nelson Mandela Bay Municipality
(SALGBC, ECD051116, 22 June 2012) ....................................................................................... 387
Greyvenstein v Kommissaris van die SA Inkomste Diens (2005) 26 ILJ 1395 (T) ........................ 447
Grieve v Denel (Pty) Ltd [2003] 4 BLLR 366 (LC) ........................................................................ 394
Grootboom v National Prosecuting Authority & Others [2014] 1 BLLR 1 (CC) ......................... 440
Gumede en Andere v SA Eagle Versekeringsmaatskappy Bpk 1989 (3) SA 741 (T) ........... 173, 174
Gurarnah v South African Weather Services [2004] 4 BALR 454 (CCMA) .......................... 384, 398
H
Halgreen v Natal Building Society (1986) 7 ILJ 769 (IC) .............................................................. 363
Hapwood v Spanjaard Ltd [1996] 2 BLLR 187 (IC) ...................................................................... 352
Harris v Volkswagen of South Africa (Pty) Ltd [2000] 10 BALR 1140 (CCMA) .......................... 383
Health & Hygiene Services v Seedat NO & Others [1999] 11 BLLR 1153 (LC) .......................... 275
Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 15 ILJ 304 (LAC) ............ 352
High Rustenburg Estate (Pty) Ltd v NEHAWU obo Cornelius & Others
(2017) 38 ILJ 1758 (LAC) ............................................................................................................ 361
Hlope & Others v Minister of Safety & Security & Others (2006) 27 ILJ 1003 (LC)............ 447, 448
HOSPERSA & Another v Northern Cape Provincial Administration
(2000) 21 ILJ 1066 (LAC) .................................................................................................... 383, 388
HOSPERSA obo Van Wyk v SA National Parks (Golden Gate) [2009] 2 BALR 169 (CCMA) .... 383
HOSPERSA obo Venter v SA Nursing Council & Others [2006] 6 BLLR 558 (LC) .................... 369
Howell v International Bank of Johannesburg Ltd (1990) 11 ILJ 791 (IC) .................................. 363
Hulett Sugar Ltd (Darnall) (2016) 37 ILJ 2441 (BCA) .................................................................. 349
I
IMATU & Others v Rustenburg Transitional Council [1999] 12 BLLR 1299 (LC) ..................... 369
IMATU obo Bezuidenhout v Witzenberg Municipality & Others [2014] 5 BLLR 443 (LC) ....... 395
IMATU obo Coetzer v Stad Tygerberg (1999) 20 ILJ 971 (CCMA) ...................................... 384, 398
Page
IMATU obo Strydom v Witzenberg Municipality & Others [2012] 7 BLLR 660 (LAC) .............. 352
IMATU obo Verster v Umhlathuze Municipality [2011] 9 BLLR 882 (LC) ................................. 388
IMATU v City of Johannesburg Metropolitan Municipality & Others
[2014] 6 BLLR 545 (LAC) ........................................................................................................... 343
Innes v Johannesburg Municipality 1911 TPD 12 .................................................. 169, 173, 175, 176
J
Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC) .............................................................. 352
James & Another v Eskom Holdings SOC & Others (2017) 38 ILJ 2269 (LAC) .......................... 349
Jardine v Tongaat Hulett Sugar Ltd [2002] 4 BALR 426 (CCMA) ............................................... 352
Jele v Premier of the Province of KwaZulu-Natal & Others [2003] 7 BLLR 723 (LC) ................. 386
Johannesburg City Council v Marine & Trade Insurance Co 1970 (1) SA 181 (W) ............ 173, 176
Johnson & Johnson (Pty) Ltd v CWIU & Others [1998] 12 BLLR 1209 (LAC) ........................... 361
Jooste v Transnet Ltd t/a South African Airways [1995] 5 BLLR 1 (LAC)................................... 344
Joseph v University of Limpopo & Others [2011] 12 BLLR 1166 (LAC) ..................................... 343
K
Kidrogen (Pty) Ltd v CCMA & Others (2018) 39 ILJ 2560 (LC)................................................... 350
Kleinhans v Parmalat SA (Pty) Ltd [2002] 9 BLLR 879 (LC)........................................................ 239
Koka v Director-General: Provincial Administration North West Government
[1997] 7 BLLR 874 (LC).............................................................................................................. 389
Komane v Fedsure Life [1998] 2 BLLR 215 (CCMA) .................................................................... 349
Kompecha v Bite My Sausage CC (1988) 9 ILJ 1077 (IC) .............................................................. 349
Krishna v University of KwaZulu-Natal (2012) 33 ILJ 1688 (LC) .................................................. 361
Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC)...................................................... 256
Kruger & Others v Aciel Geomatics (Pty) Ltd (2016) 37 ILJ 2567 (LAC) .................................... 361
Kruger v SA Police Service (2003) 24 ILJ 477 (BCA) ..................................................................... 398
Kruse v Gijima AST (Pty) Ltd [2010] JOL 24998 (LC) .................................................................. 239
Kukard v GKD Delkor (Pty) Ltd [2015] 1 BLLR 63 (LAC) ................................................... 342, 363
Kunene & Others v Dunlop Belting Products (Pty) Ltd (2011) 20 CCMA 9.4.2 .......................... 306
L
Labuschagne v Techno Plastics (Pty) Ltd [2005] 6 BALR 610 (MEIBC) ............................. 383, 387
Langa & Others v Active Packaging (Pty) Ltd [2001] 1 BLLR 37 (LAC) ..................................... 276
Liberty Life Association of Africa Ltd v Niselow [1996] 7 BLLR 825 (LAC) ................................ 233
Limekaya v Department of Education [2004] 5 BALR 586 (GPSSBC) ................................. 384, 398
Long v SA Breweries & Others [2018] ZACC 7 (CC)..................................................................... 389
Lotter v SA Police Service (2005) 26 ILJ 578 (BCA) .............................................................. 384, 398
Louw v SA Rail Commuter Corporation Ltd & Another (2005) 26 ILJ 1960 (W) ........................ 448
Lukie v Rural Alliance CC t/a Rural Development Specialist [2004] 8 BLLR 769 (LC) ..... 151, 344
M
Mabilo v Mpumalanga Provincial Government & Others [1999] 8 BLLR 821 (LC) ................... 389
Mabinana & Others v Baldwins Steel [1999] 5 BLLR 453 (LAC) ................................................. 349
Mahlamu v CCMA & Others [2011] 4 BLLR 381 (LC) ................................................................. 258
Mahlangu v Minister of Sport and Recreation [2010] JOL 25011 (LC) ....................................... 440
Maidi v MEC for Department of Education [2003] 8 BLLR 761 (LC) ......................................... 440
Malandho v SABC [1997] 5 BLLR 555 (LC) .................................................................................. 343
Manana v Department of Labour [2010] 6 BLLR 664 (LC) ......................................................... 384
Mankahla & Others v University of Transkei [2004] 11 BALR 1340 (P) ...................................... 383
Marneweck v SEESA Ltd [2009] 7 BLLR 669 (LC) ................................................................ 342, 363
Marsland v New Way Motor & Diesel Engineering (2009) 30 ILJ 169 (LC) ......................... 172, 176
Maseko v Entitlement Experts [1997] 3 BLLR 317 (CCMA)......................................................... 381
Mashava v Cuzen & Woods Attorneys [2000] 6 BLLR 691 (LC) ........................................... 151, 343
Table of cases 461
Page
Mashegoane & Another v University of the North [1998] 1 BLLR 73 (LC)......................... 383, 385
Mathibeli v Minister of Labour & Others [2015] 3 BLLR 267 (LAC)........................................... 382
McInnes v Technikon Natal [2000] 6 BLLR 701 (LC) .......................................................... 343, 346
MEC, Public Works, Northern Province v CCMA & Others [2003] 10 BLLR 1027 (LC) ............ 440
Metcash Trading Ltd t/a Metro Cash & Carry v Fobb & Others [1998] 11 BLLR 1136 (LC)..... 349
Metro Rail (Wits) v SAFWU [1998] 1 BALR 88 (IMSSA) .............................................................. 386
Metropolitan Health Risk Management v Majatladi [2015] 3 BLLR 276 (LAC) ......................... 344
Minister of Justice v Khoza 1966 (1) SA 410 (A) ............................................................ 170, 173, 175
MITUSA & Others v Transnet Ltd & Others [2002] 11 BLLR 1023 (LAC) ......................... 383, 388
MITUSA v Portnet [2000] 9 BALR 1037 (CCMA) ......................................................................... 388
Miyambo v CCMA & Others [2010] 10 BLLR 1017 (LAC) ........................................................... 349
Mnguni v Gumbi [2004] 6 BLLR 558 (LC) ............................................................................ 151, 344
Modise & Others v Steve’s Spar Blackheath [2002] 5 BLLR 496 (LAC)............................... 302, 306
Mogorosi and SA Reserve Bank (2008) 29 ILJ 439 (CCMA) ......................................................... 344
Mogothle v Premier of the North West Province & Others [2009] 4 BLLR 331 (LC)................. 341
Monyakeni v SA Police Service & Others (2008) 29 ILJ 3111 (BCA) ............................................ 384
Moropane v Gilbeys Distillers and Vintners (Pty) [1997]10 BLLR 1320 (LC) ............................. 341
Moses v Magnum Security Services [2002] 11 BALR 1166 (CCMA) ............................................. 382
Moslemany v Unilever PLC & Another [2006] 12 BLLR 1167 (LC)............................................. 239
Mthembu & Another v SA Police Service & Another (2010) 31 ILJ 1014 (BCA) ......................... 384
Mtshali & Others v Nestlé SA [2002] 6 BALR 632 (CCMA) .......................................................... 391
Murray and Independent Newspapers (2003) 24 ILJ 1420 (CCMA) ............................................ 387
Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA)....................................................... 344, 363
Mzimni & Another v Municipality of Umtata [1998] 7 BLLR 780 (Tk) ....................................... 382
N
NAGEWU v Mr Clean [1998] 7 BALR 844 (CCMA) ...................................................................... 267
Naidoo v Rudolph Chemicals (Pty) Ltd [2008] 6 BALR 497 (NBCCI) ........................................ 390
National Entitled Workers Union v CCMA & Others (2003) 24 ILJ 2335 (LC) ........................... 381
National Health Laboratory Service v Yona [2015] 10 BLLR 1002 (LAC) ................................... 344
National Health Laboratory Services v Yona & Others (2015) 36 ILJ 2259 (LAC) ...................... 363
Nawa & Another v Department of Trade & Industry [1998] 7 BLLR 701 (LC) ........................... 381
NCAWU obo Tobias & Others v Pick ’n Pay Family Supermarket
[2003] 12 BALR 1413 (CCMA) ................................................................................................... 390
Ndebele v Foot Warehouse (Pty) Ltd t/a Shoe Warehouse (1992) 13 ILJ 1247 (IC) .................. 363
Ndlovu v Pather (2006) 27 ILJ 2671 (LC)....................................................................................... 344
NEHAWU obo Makhethu v Robben Island Museum (2008) 29 ILJ 2318 (CCMA) ..................... 389
NEHAWU obo Thomas v Department of Justice (2001) 22 ILJ 306 (BCA) ................................. 398
NEHAWU v University of Cape Town & Others (2003) 24 ILJ 95 (CC) ....................................... 361
Nelson Mandela Metropolitan Municipality (NMMM) v Mkumatela
[2016] 6 BLLR 585 (LAC) ........................................................................................................... 384
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau & Others
[2003] 10 BLLR 1034 (LC).......................................................................................................... 411
NEWU v CCMA & Others [2004] 2 BLLR 165 (LC) ...................................................................... 381
Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC)........................................... 389, 390
Nicosia v Workmen’s Compensation Commissioner 1954 (3) SA 897 (T) ........... 169, 173, 175, 176
Nieuwoudt v All-Pak (2009) 30 ILJ 2451 (LC) ................................................................................ 344
Niland v Ntabeni NO & Others (2017) 38 ILJ 1686 (LC) .............................................................. 363
Nobela v Consulate General USA [1999] 1 BLLR 31 (LC) ........................................................... 239
Nokeng Tsa Taemane Local Municipality v Louw NO [2019] 1 BLLR 35 (LAC) ....................... 344
Noonan v SSBC & Others [2012] 9 BLLR 876 (LAC) ................................................................... 385
Northern Cape Provincial Administration v Hambidge NO & Others
[1999] 7 BLLR 698 (LC)...................................................................................................... 383, 387
NPSU & Others v The National Negotiating Forum & Others [1999] 4 BLLR 361 (LC) ........... 276
Ntlabezo & Others v MEC for Education, Eastern Cape & Others [2002] 3 BLLR 274 (Tk) ..... 382
Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC) ............................................................... 344, 363
Page
NULAW v Barnard NO & Another [2001] 9 BLLR 1002 (LAC)........................................... 342, 363
NUM & Others v Billard Contractors CC & Another (2006) 27 ILJ 1686 (LC) ................... 302, 306
NUM & Others v Namakwa Sands & Others [2008] 7 BLLR 675 (LC) ........................................ 304
NUM & Others v RSA Geological Services & Others [2004] 1 BALR 1 (ARB) ............................ 361
NUM v Black Mountain Mining (Pty) Ltd & Others [2010]3 BLLR 281 (LC) ............................ 349
NUMSA & Others v Abancedisi Labour Services [2013] 12 BLLR 1185 (SCA) ................... 342, 363
NUMSA & Others v Aveng Trident Steel & Others [2018] 5 BLLR 500 (LC) ............................. 304
NUMSA & Others v Bader Bop (Pty) Ltd & Another [2003] 2 BLLR 103 (CC) .......................... 255
NUMSA & Others v Fibre Flair CC [2000] 6 BLLR 631 (LAC) ..................................................... 361
NUMSA & Others v Fry's Metals (Pty) Ltd [2005] JOL 14141 (SCA) ........................................... 251
NUMSA & Others v Transnet & Others [2019] 2 BLLR 172 (LC) ............................................... 258
NUMSA & Others v Zeuna-Starker Bop (Pty) Ltd [2003] 1 BLLR 72 (LC) ................................. 304
NUMSA obo Khanye & Another v Havco Manufacturing (Pty) Ltd
[2003] 12 BALR 1349 (MEIBC) .................................................................................................. 391
NUMSA obo members v Behr Climate & Control [2004] 3 BALR 364 (CCMA) ......................... 276
NUMSA obo Tshikana v Delta Motor Corporation [2003] 11 BALR 1302 (CCMA) ................... 390
NUMSA v Assign Services (Pty) Ltd & Others [2017] 10 BLLR 1008 (LAC) ....................... 235, 239
NUMSA v Aveng Trident Steel & others [2018] 5 BLLR 500 (LC)............................................... 346
NUMSA v Bader Bop (Pty) Ltd [2003] 2 BLLR 103 (CC) ............................................................. 261
NUMSA v Feltex Foam [1997] 6 BLLR 798 (CCMA) .................................................................... 262
NUMSA v Zeuna-Starker Bop (Pty) [2003] 11 BLLR 1081 (LAC) ................................................ 346
NUTESA v Border Technikon [2005] 12 BALR 1302 (CCMA) .................................................... 384
Nxele v Chief Deputy Commissioner, Corporate Services, Department of
Correctional Services & Others [2008] 12 BLLR 1179 (LAC) .................................................. 386
Nyalunga v PP Webb Construction (1990) 11 ILJ 819 (IC) ........................................................... 363
O
OCGAWU obo Mapolie v Metlite Alloys [2002] 10 BALR 1058 (CCMA) .................................... 390
OCGAWU v Total SA (Pty) Ltd [1999] 6 BALR 678 (CCMA) ...................................................... 262
OCGAWU v Woolworths (Pty) Ltd [1999] 7 BALR 813 (CCMA) ................................................. 262
Odayar v Compensation Commissioner 2006 (6) SA 202 (N) .............................................. 172, 176
Olkers v Monviso Knitwear (Pty) Ltd (1988) 9 ILJ 875 (IC) .................................................. 349, 363
Ouwehand v Hout Bay Fishing Industries [2004] 8 BLLR 815 (LC) .................................... 342, 363
P
Parexel International (Pty) Ltd v Chakane NO & Others (2018) 39 ILJ 644 (LC) ...................... 352
Parry v Astral Operations [2005] 10 BLLR 989 (LC) ..................................................................... 361
Pecton Outsourcing Solutions CC v Pillemer [2016] 2 BLLR 186 (LC)....................................... 258
Pedzinski v Andisa Securities (Pty) Ltd (Formerly SCMB Securities (Pty) Ltd)
[2006] 2 BLLR 184 (LC).............................................................................................. 304, 346, 394
Phenithi v Minister of Education [2006] 9 BLLR 821 (SCA) ........................................................ 440
Piet Wes Civil CC v AMCU & Others [2018] ZALAC 18 (LAC) .................................................... 360
Piet Wes Civils CC & Another v AMCU & Others (2019) 40 ILJ 130 (LAC) ................................. 355
POPCRU v SACOSWU [2018] ZACC 24 (CC) ............................................................................... 261
Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC)............... 344, 363
Protekon (Pty) Ltd v CCMA & Others [2005] 7 BLLR 703 (LC) .......................................... 383, 388
PSA obo Badenhorst v Department of Justice (1999) 20 ILJ 253 (CCMA) ................... 383–385, 398
PSA obo Dalton & Another v Department of Public Works
[1998] 9 BALR 1177 (CCMA) ............................................................................................. 385, 398
PSA obo Haschke v MEC for Agriculture & Others (2004) 25 ILJ 1750 (LC) .............................. 447
PSA obo Mohlala v Minister of Home Affairs & Others [2018] 12 BLLR 1203 (LC) .................. 440
PSA obo Petzer v Department of Home Affairs (1998) 19 ILJ 412 (CCMA) ................................ 385
PSA obo Thorne v Department of Community Service (Western Cape) & Others
[2018] 12 BLLR 1173 (LAC) ....................................................................................................... 385
PSA obo Van der Walt v Minister of Public Enterprise [2010] 1 BLLR 78 (LC) .......................... 440
Table of cases 463
Page
PTWU obo members v Sahar Security Services [2004] 3 BALR 373 (CCMA).............................. 275
Pyper v Manchester Liners Ltd 1916 2 KB 691 ....................................................................... 169, 173
Q
Quince Products CC v Pillay [1997] 12 BLLR 1547 (LAC) ........................................................... 363
R
Rainbow Farms (Pty) Ltd v CCMA & Others
[2011] 5 BLLR 504 (LC); [2011] 5 BLLR 451 (LAC) ................................................................ 349
Randall v Karan (2010) 31 ILJ 2449 (LC) ....................................................................................... 369
Randall v Progress Knitting Textiles Ltd (1992) 13 ILJ 200 (IC) .................................................. 343
Raol Investments (Pty) Ltd t/a Thekwini Toyota v Madlala [2008] 6 BLLR 535 (SCA) ..... 346, 349
Regent Insurance Co Ltd v CCMA & Others (2013) 34 ILJ 410 (LC) .......................................... 363
Rubenstein v Price’s Daelite (Pty) Ltd [2002] 5 BLLR 472 (LC) .................................................. 369
Rubin Sportswear v SACTWU & Others [2004] 10 BLLR 986 (LAC)................................... 346, 369
Rustenburg Platinum Mine v SA Equity Workers Association obo Bester & Others
(2018) 39 ILJ 1503 (CC) .............................................................................................................. 350
Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others
[2006] 11 BLLR 1021 (SCA) ....................................................................................................... 251
Rustenburg Platinum Mines Ltd (Rustenburg Section) v NUM & Others
[2001] 3 BLLR 305 (LAC) ........................................................................................................... 349
S
SA Metal & Machinery Co (Pty) Ltd v Gamaroff [2010] 2 BLLR 136 (LAC) ............................... 369
SA Police Service v Safety & Security Sectoral Bargaining Council & Others
(2012) 33 ILJ 453 (LC)................................................................................................................. 363
SA Post Office Ltd v Mampeule [2010] 10 BLLR 1052 (LAC) ...................................................... 258
SA Postal Workers Union obo Dreyer and Others v South African Post Office Ltd & Another
[2013] 2 BALR 216 (CCMA) ....................................................................................................... 263
SA Rugby Players’ Association (SARPA) & Others v SA Rugby (Pty) Ltd & Others
[2008] 9 BLLR 845 (LAC) ........................................................................................................... 343
SA Transport and Allied Workers Union v Garvis & Others [2011] 4 All SA 475 (SCA)............. 297
SAAPAWU Free State v Fourie & Others [2007] 1 BLLR 67 (LC) ................................................ 346
SABC v McKenzie [1999]1 BLLR 1 (LAC) ..................................................................................... 233
SACCAWU & Another v The Clicks Organisation (Pty) Ltd [1997] 2 BLLR 164 (IC) ................ 349
SACCAWU v Metlife (Pty) Ltd (1997) 18 ILJ (CCMA) .................................................................. 263
SACCAWU v OK Bazaars 1995 (3) SA 622 (A) ............................................................................... 270
SACCAWU v Pep Stores (1998) 19 ILJ 939 (CCMA) ..................................................................... 352
SACCAWU v Speciality Stores Ltd [1998] 4 BLLR 352 (LAC) ...................................................... 275
SACCAWU v The Hub [1998] 12 BALR 1590 (CCMA) ................................................................. 262
SACTWU & Another v Cadema Industries (Pty) Ltd [2008] 8 BLLR 790 (LC) .......................... 343
SACTWU v Bibart Projects [2000] 1 BALR 65 (CCMA) ................................................................ 267
SACTWU v Sheraton Textiles (Pty) Ltd [1997] 5 BLLR 662 (CCMA) ......................................... 263
SACTWU v WM Eachus and Co (CCMA 1997) .............................................................................. 263
Samancor Ltd v NUMSA & Others [1999] 11 BLLR 1202 (LC) ................................................... 305
Samancor Tubatse Ferrochrome v MEIBC & Others [2010] 8 BLLR 824 (LAC) ........................ 351
SAMWU v Rand Airport Management Company (Pty) [2005] 3 BLLR 241 (LAC)..................... 346
SAR & H v SA Stevedores Service Co Ltd 1983 (1) SA 1066 (A) ........................................... 174, 175
SARS v CCMA & Others [[2017] 1 BLLR 8 (CC) .......................................................................... 350
SATAWU & Another v Garvas & Others (City of Cape Town as Intervening Party and
Freedom of Expression Institute as amicus curiae) [2012] 10 BLLR 959 (CC) ......................... 306
Schreuder v Nederduitse Gereformeerde Kerk Wilgespruit & Others
[1999] 7 BLLR 713 (LC).............................................................................................................. 352
Schwartz v Sasol Polymers & Others (2017) 38 ILJ 915 (LAC) ...................................................... 350
Sekwati v Masiya & Others (2011) 32 ILJ 2219 (LC) ...................................................................... 363
Page
Services (Pty) Ltd v Browne [2006] 2 BLLR 131 (LAC) ................................................................ 369
Services (Pty) Ltd v SATAWU & Others [2009] 10 BLLR 933 (LAC)........................................... 346
Shoprite Checkers (Pty) Ltd v CCMA & Others (2006) 27 ILJ 2681 (LC) ................................... 312
Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC) ........................................ 342, 363
SMCWU & Another v Party Design CC (Doll’s Dairy) [2001] 6 BLLR 667 (LC) ......................... 349
Solidarity obo McCabe v SA Institute for Medical Research [2003] 9 BLLR 927 (LC) ....... 151, 343
Solidarity v Mercedes Benz of SA (Pty) Ltd [2011] 11 BALR 1216 (CCMA) ............................... 263
Solutions (Pty) Ltd [2014] 6 BLLR 600 (LC) ................................................................................. 349
South African Freight & Dock Workers Union v Safcor Freight (Pty) Ltd (2011) ...................... 304
Standard Bank of South Africa v CCMA & Others [2008] 4 BLLR 356 (LC)............................... 352
State Information Technology Agency (SITA) (Pty) Ltd v CCMA
[2008] 7 BLLR 611 (LAC) ........................................................................................................... 233
Steenkamp & Others v Edcon Ltd (2016) 37 ILJ 564 (CC) ........................................................... 356
Strategic Liquor Services v Mvumbi NO & Others [2009] 9 BLLR 847 (CC) ...................... 344, 363
Structural Applications (Pty) Ltd v TAWUSA [2003] 10 BALR 1203 (CCMA) .................... 262, 263
Swanepoel v AECI Ltd (1984) 5 ILJ 41 (IC) ................................................................................... 349
Swart v Greenmachine Horticultural Services (A Division of Sterikleen (Pty) Ltd)
(2010) 31 ILJ 180 (LC)................................................................................................................. 151
Swissport (SA) (Pty) Ltd v SA Transport & Allied Workers Union & Others
(2011) 32 ILJ 1256 (LC)............................................................................................................... 305
T
Tasima (Pty) Ltd v Road Traffic Management Corporation & Other (2017) 38 ILJ 385 (LC) ..... 361
TDF Network Africa (Pty) Ltd v Faris [2019] 2 BLR 127 (LAC) ................................................... 346
The Law Society of the Northern Provinces v Minister of Labour & Others
(NGHC 61197/11, 11 October 2012) ......................................................................................... 411
The National Bargaining Council for the Road Freight Industry & Another v
Carlbank Mining unreported JA 52/10, 20 March 2012 (LAC) .................................................... 8
Thomas (Rockliffe) v Mincom (Pty) Ltd [2007] 10 BLLR 993 (LC) ............................................ 369
TSI Holdings (Pty) Ltd v NUMSA & Others [2006] 7 BLLR 631 (LAC) ...................................... 341
TWK Agri (Pty) Ltd v Wagner & Others (2018) 39 ILJ 797 (LAC) ............................................... 355
U
University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC) ..................................... 343
University of Pretoria v CCMA & Others [2012] 2 BLLR 164 (LAC) ........................................... 343
UPUSA v Komming Knitting [1997] 4 BLLR 508 (CCMA) ........................................................... 263
Urquhart v Compensation Commissioner (2006) 27 ILJ 96 (E) ........................................... 172, 176
Vaal Toyota (Nigel) v Motor Industry Bargaining Council & Others
[2002] 10 BLLR 936 (LAC) ......................................................................................................... 350
V
Value Logistics Ltd v Basson & Others (2011) 32 ILJ 2552 (LC) .................................................. 363
Van der Merwe v Agricultural Research Council [2013] 9 BALR 1012 (CCMA) ......................... 352
Van der Riet v Leisurenet Ltd t/a Health and Racquet Club
[1998] 5 BLLR 471 (LAC) ................................................................................................... 344, 363
Van der Velde v Business & Design Software (Pty) Ltd (2) [2006] 10 BLLR 1004 (LC) ............. 346
Van Wyk v Albany Bakeries Ltd [2003] 12 BLLR 1274 (LC) ......................................................... 344
Victor v Finro Cash & Carry (2000) 21 ILJ 2489 (LC).................................................................... 151
Viljoen v Johannesburg Stock Exchange Ltd (2017) 38 ILJ 671 (LC) .......................................... 355
Volkswagen SA (Pty) Ltd v Brand NO & Others [2001] 5 BLLR 558 (LC) .................................. 361
W
Wallace v Du Toit (2006) 27 ILJ 1754 (LC) ............................................................................ 151, 344
Ward v Workmen’s Compensation Commissioner 1962 (1) SA 728 (T) ...................... 173, 174, 175
Table of cases 465
Page
Western Cape Education Department v GPSSBC & Others [2014] 10 BLLR 987 (LAC) ........... 344
WESUSA v Isidingo Security Services [2007] 7 BALR 678 (CCMA) ............................................. 263
Whall v BrandAdd Marketing (Pty) Ltd [1999] 6 BLLR 626 (LC) ............................................... 361
WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen [1997] 2 BLLR 124 (LAC) ............... 344, 363
Woolworths (Pty) Ltd v SACCAWU & Others (2018) 39 ILJ 222 (LAC) ...................................... 355
Workforce Group v McLintock & Others (2017) 38 ILJ 158 (LAC) ............................................. 350

A Practical Guide To Labour Law

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A Practical Guide

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NOTE TO THE READER

Part 1: Common Law

Part 2: Social Legislation

Part 3: Labour Relations

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

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

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

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

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

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

1.2 Sources of Labour Law rules

1.3 Lexical order of sources and rules

Bargaining council collective agreements

Sectoral and ministerial determinations

From the above diagram the following is clear:

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

2.2 Nature of locatio conductio operarum (contract of employment)

1 GN 1774 of 1 December 2006.

2.3 Conclusion of the contract

2.4 Essentialia of the employment contract

2.4.1 Specified work

2.5 Conditions of employment

In terms of legislation an employee is entitled to paid holiday (annual) leave. Section 20

2.6 Duties of employer

• to accept the employee into his service

2.6.1 To accept the employee into his service

2.6.3 To pay the remuneration agreed upon

2.6.4 To pay a quantum meruit

2.6.5 To provide safe working conditions

2.6.6 To comply with statutory duties

2.7 The employee’s remedies

• cancellation of the employment contract

2.7.2 Specific performance

2.7.4 Refusal to work

2.7.5 Statutory remedies

2.8 The employee’s duties

2.8.1 To make his services available

2.8.2 To warrant his competence

2.8.3 To obey the employer

2.8.4 To be subordinate to the employer

2.8.5 Maintaining bona fides

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

2.8.7 To refrain from misconduct

2.9 The employer’s remedies

• summary termination (cancellation)

2.9.1 Summary dismissal

2.9.2 Specific performance

2.9.4 Statutory remedies

2.10 Termination of the contract of employment

2.10.2 By effluxion of time or completion of a specific task

2.10.4 By the death of the employee

2.10.6 By the illness of the employee

2.10.7 By impossibility of performance

2.10.8 By cancellation (summary termination)

2.10.9 Redundancy of post

2.11 The employer’s delictual liability

2.11.1 Employer/employee relationship