ABR 410: LABOUR LAW

NICOLA IRVING
NICOLA IRVING

NICOLA IRVING©
ABR 410
_______________________

DISCLAIMER:
Please take note of the fact that these notes may not be comprehensive of the
material required to be covered for the module and contained in the prescribed
syllabus as reflected in the study guide. There may be errors; omissions or
shortcomings, accordingly, use these notes at your own discretion.

ACKNOWLEDGEMENT OF SOURCES:
These notes were composed based on:
• Professor Stefan Van Eck:
o Lecturer in the Department of Mercantile Law, University of Pretoria:
ABR 410 (Labour law) 2020.
o Slides, class notes and tutorials.
• The Labour Law 410 Study Guide (2020) University of Pretoria.
• Van Niekerk and Smit Law@work (2020) 5th ed LexisNexis.

PLEASE NOTE:

These notes shall not be shared without the express consent of the author
thereof.

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Study Unit 1: Introduction to Labour Law ................................................................................... 6

What is ‘labour law’, what legal sources does it consist of and does it have claim to
an independent discipline? ......................................................................................................... 6
Labour law serves as ‘countervailing force’ to employers’ superior social power.
What does this entail? .................................................................................................................. 6
Explain the difference between the ‘libertarian approach’ and the ‘social justice
perspective’. Which approach do you support? ................................................................... 7
Discuss the pre-1994 labour law era and the development of the notion of the ‘unfair
labour practice’. Discuss the post-1994 labour law era and explain the main
purposes of the LRA, the BCEA and the EEA: ....................................................................... 8
What is NEDLAC, the CCMA and bargaining councils? ...................................................... 9
What does the concept ‘decent work’ entail and has this labour law ideal been met
with success in South Africa? .................................................................................................... 9
Study Unit 2: International Standards and the Constitution ................................................ 10
Why is it imperative to have a rudimentary knowledge of international labour
standards? ..................................................................................................................................... 10
When was the ILO established, what was (and is) the relation between SA and the
ILO and when did SA re-join the ILO? .................................................................................... 11
What are the core conventions and what do they deal with? .......................................... 11
What is the difference between ILO ‘conventions’ and ‘recommendations’? ............. 12
Why is it imperative that SA must follow ILO standards and in which court cases
have SA actually adhered to these standards? What was decided in the court
cases? ............................................................................................................................................. 12
What does the SADC Charter say and what does the UN Global Compact entail and
what labour rights apply to multi-national corporations? ................................................ 14
What is the content and meaning of section 23 of the Constitution?............................ 14
Constitutional rights have the potential to affect labour law in three ways. Explain
this in your own words: .............................................................................................................. 15
Discuss the right to fair labour practices and explain whether it should only cover
workers, both workers and employers or all persons: ...................................................... 15
Do soldiers have the right to fair labour practices despite the fact that the Labour
Relations Act 66 of 1995 does not apply to them? ............................................................. 16
Is there a constitutional duty to engage in collective bargaining and can an
employee rely on the constitutional provision despite the fact that the Labour
Relations Act 66 of 1995 regulates this aspect? ................................................................. 16
Study Unit 3: Identifying the Elusive Employee....................................................................... 17
Why is it so important to identify if a person forms part of an employment
relationship? ................................................................................................................................. 17
What are the traditional common-law tests to determine if a person is an employee?
.......................................................................................................................................................... 18

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Explain the statutory definition of ‘employee’, the exclusions as well as the test of
the SITA v CCMA case:............................................................................................................... 19
What does the presumption as to who is an employee entail? ....................................... 20
What are the so-called non-standard forms of employment and what protection can
labour broker employees, fixed-term employees and part-time employees rely on?20
Should sex workers and undocumented migrants be entitled to labour law
protection in South Africa? ....................................................................................................... 26
Is the traditional definition of employee sufficient to cover new forms of work such
as platform workers, on-demand workers (such as Uber drivers and SweepSouth)?
How could these workers be protected during the era of globalisation and the
formation of new forms of work? ............................................................................................ 27
Are Uber driver’s ‘employees’ and do Van Eck and Nemusimbori agree? How does
Du Toit suggest that workers in the modern world of work should be protected? ... 31
How has the Global Commission on the Future of Work responded to the
development of new forms of work during the Fourth Industrial Revolution? ........... 32
Study Unit 3: Class question .................................................................................................... 37
Study Unit 4: The Common Law and BCEA .............................................................................. 38
Discuss the main common-law obligations of employers and employees
respectively: .................................................................................................................................. 38
What is the purpose and scope of the Basic Conditions of Employment Act 75 of
1997 (BCEA)? ................................................................................................................................ 42
What is the purpose, scope and the minimum standards set by the National
Minimum Wage Act 9 of 2018 (NMWA)? ................................................................................ 42
Apply the most important basic conditions of employment provided by the BCEA
(and the NMWA) to clauses of a contract of employment. These include provisions
in relation to hours of work, overtime, different forms of leave, notice periods and
the minimum wage: ..................................................................................................................... 43
What parental leave are fathers and adoptive parents entitled to? Does this
constitute paid leave in respect of which the employer has to pay up? ....................... 47
Study Unit 5: Equality at Work and Affirmative Action .......................................................... 48
The nature of equality: ................................................................................................................ 48
Describe the purpose of the Employment Equity Act 55 of 1998 (EEA): ...................... 49
Explain the EEA’s methods of eliminating unfair discrimination and the
implementation of affirmative action: ..................................................................................... 50
Discuss the exceptions to unfair discrimination with reference to ‘fair inherent
requirements of a job’ and ‘affirmative action’: ................................................................... 57
Dispute procedures and remedies concerning unfair discrimination: .......................... 60
Describe the terms ‘designated groups’, ‘designated employers’ and ‘suitably
qualified’ in terms of the EEA: .................................................................................................. 61
Duties of ‘designated employers’: ........................................................................................... 61
Powers of the Labour Court:..................................................................................................... 63

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Jurisdiction of the Labour Court: ............................................................................................ 63

State contracts: ............................................................................................................................ 63
Study Unit 5: Class question .................................................................................................... 63
Study Unit 6: Unfair Labour Practices ........................................................................................ 65
Reflect on the codification of the definition of ‘unfair labour practice’: ....................... 65
Discuss the content of the current definition of ‘unfair labour practice’ in terms of
the LRA: .......................................................................................................................................... 65
Unfair labour practices in the context of promotion: ......................................................... 66
Unfair labour practices in the context of demotion: ........................................................... 67
Unfair labour practices in the context of probation: .......................................................... 67
What aspects are covered under the term ‘benefits’ in terms of the definition of
unfair labour practice? ............................................................................................................... 68
Unfair disciplinary action short of dismissal: Suspension............................................... 68
Resolution of unfair labour practice disputes: .................................................................... 69
Study Unit 6: Class question .................................................................................................... 69
Study Unit 7: Unfair Dismissal...................................................................................................... 70
The statutory meaning of ‘dismissal’ with emphasis on: termination of employment
by the employer; refusal by the employer to renew a fixed-term contract; and
constructive dismissal: .............................................................................................................. 70
What actions do not constitute dismissal?........................................................................... 77
Date of dismissal: ........................................................................................................................ 78
Discuss the resolution of dismissal disputes, onus in dismissal disputes and the
remedies in terms of the LRA: .................................................................................................. 78
Discuss the content of the definition of ‘automatically unfair reasons’ for dismissal:
.......................................................................................................................................................... 83
Explain the reasons that could potentially render a dismissal fair: ............................... 84
Conduct justifying dismissal: ................................................................................................... 87
How is the substantive fairness of a dismissal for misconduct determined? ............ 89
Identify the requirements for a disciplinary hearing to be fair: ....................................... 91
Discuss incompetence and incapacity as possible grounds for a fair dismissal: ..... 93
Define ‘operational requirements’ and examine the procedure that the employer
must follow when a dismissal due to operational requirements is considered: ........ 94
Calculate the severance pay an employee who was dismissed for operational
requirements will be entitled to: ............................................................................................ 103
Summary diagram...................................................................................................................... 104
Study Unit 7: Class question .................................................................................................. 104
Study Unit 8: Freedom of Association and Organisational Rights................................... 107
The protection of the right to freedom of association: .................................................... 107

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Exceptions to the right to freedom of association in terms of the LRA: .................... 109
What tests need to be applied, and what legal processes need to be followed to
determine if a trade union is ‘sufficiently representative’? ............................................ 111
Explain the different organisational rights (‘trade union rights’) that majority and
sufficiently representative trade unions are entitled to: ................................................. 113
Are minority trade unions entitled to strike in order to gain organisational rights?115
Disputes concerning the exercise of organisational rights and other disputes: ..... 115
Study Unit 8: Class questions ................................................................................................ 117
Study Unit 9: Collective bargaining, Strikes and Lockouts ................................................ 118
The meaning, requirements and functions of trade unions, employers’
organisations, and bargaining councils: ............................................................................. 118
The binding effect of, and the extension of collective agreements: Error! Bookmark not
defined.
What is the meaning of ‘workplace’ in the context of collective bargaining? ........... 121
What are the definitions for ‘strike’ and ‘lock-out’? ......................................................... 122
What are the substantive and procedural requirements for strikes? .......................... 122
What are the requirements for protected secondary strikes? ....................................... 126
Explain the immunities in respect of protected strikes and the consequences of
unprotected strikes: .................................................................................................................. 132
Study Unit 10: Dispute Resolution ............................................................................................ 139
Discuss the different dispute-resolution mechanisms established by the LRA: ..... 145
Distinguish between conciliation, arbitration, con-arb, pre-dismissal arbitration and
adjudication by the Labour Court: ........................................................................................ 145
Critically analyse the achievement of expeditious dispute resolution as well as the
authority and powers of the different dispute resolution institutions:.. Error! Bookmark
not defined.
Are employees entitled to be represented by a legal representative during
conciliation and arbitration and are the limitations constitutional? ............................ 153
Compulsory Readings: Summaries .......................................................................................... 156
Study Unit 1: Cohen & Moodley “Achieving ‘decent work’ in South Africa” 2012
PER/PELJ 320-569 ..................................................................................................................... 156
Study Unit 3: Van Eck BPS and Nemusimbori E “Uber Drivers: Sad to Say, but no
Employees in SA” (2018) THRHR (Vol 3) 473- 483 ............................................................ 160
Study Unit 3: Du Toit “Platform Work and Social Justice” (2019) ILJ 1-11 ................ 161
Study Unit 3: Global Commission on the Future of Work: Work for a Brighter Future
(2019) p 5 and Executive Summary pp10-14 ....................................................................... 163
Study Unit 4: Behari “The Effect of the Labour Laws Amendment Bill 2017 on
Shared Parental Responsibilities” (2018) ILJ 2148 ........................................................... 163
Study Unit 5: Rycroft “Inherent Requirements of the Job” 2015 36 ILJ 900 .............. 164

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Study Unit 9: Van Eck “In the Name of ‘Workplace and Majoritarianism’: Though
Shalt not Strike ― Association of Mineworkers & Construction Union v Chamber of
Mines (2017) 38 ILJ 831 (CC) and National Union of Metalworkers of SA & Others v
Bader Bop (Pty) Ltd & Another (2003) 24 ILJ 305 (CC)” 2017 ILJ 1496-1510 ........... 166
Appendix 1 ................................................................................................................................... 173

Study Unit 1: Introduction to Labour Law

What is ‘labour law’, what legal sources does it consist of and does it have
claim to an independent discipline?
• Labour law focuses mainly on those situations where an employer-employee
relationship exists i.e. In the formal economy.
• However, it is not based on a single legal concept and refers rather to a dimension
of life i.e. The world of work and people’s engagement in it.
• It does not have claim to an independent discipline because it is not based on a
single legal concept but consists of many components.
• Despite its multi-faceted nature, labour law warrants consideration as a stand-
alone topic for two main reasons:
o Work is fundamental to individual self-esteem, dignity and status; and
o Work is the principal means through which economic activity is conducted
and material needs are sustained.
• Labour law consists of a variety of sources, including the Constitution, common
law and labour legislation, encompassing aspects of contract, delict, constitutional
and international law.
Labour law serves as ‘countervailing force’ to employers’ superior social
power. What does this entail?
• The traditional role of labour law is to establish a more equal balance between
employers and employees, to prevent over-exploitation.
• Moreover, labour law is premised on the notion that employers and employees
occupy vastly unequal bargaining positions.
• The regulation of the labour market is a highly contentious social and political issue
due to the high unemployment rate and slow job creation i.e. 29% unemployment
in South Africa.
• Labour law offsets the effect of employers’ superior social power by countering it
with something of equal force:
o Substantive intervention:
▪ Labour law imposes minimum standards below which an employer
and an employee may not contract i.e. It establishes minimum
standards of employment or a ‘floor of rights’.
▪ An example of this is the National Minimum Wage Act (NMWA) which
establishes a national minimum wage.
o Procedural intervention:
▪ Labour law creates rights, institutions and structures to curtail the
employers’ superior social and economic power i.e. Collective

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bargaining which refers to the negotiation of wages and other

conditions of employment, by an organised body of employees.
• It is common cause that the traditional foundation of labour law is being eroded by
various phenomena:
o The standard employment contract is no longer the primary means through
which work is conducted.
o The legal regulation of work under the Fourth Industrial Revolution is
untraversed territory, due to the existence of new forms of work.
▪ Q: Does the answer lie in extending the definition of ‘employee’?
▪ Q: How effective is the minimum ‘floor of rights’ in new forms of work,
which is traditionally premised on the employer-employee
relationship?
o There is a decline in the institution of collective bargaining and levels of
trade union membership.
Explain the difference between the ‘libertarian approach’ and the ‘social
justice perspective’. Which approach do you support?
• Libertarian approach to labour law:
o Free-market model which emphasises the role of freedom of contract in
regulating the employment relationship.
o This approach is premised on the notion that the only legitimate regulatory
mechanism of the employment relationship is the contract of employment
and individual bargain.
o This approach is highly capitalist and has no regard for the notion that
certain groups are more vulnerable than others.
o Libertarians believe that deregulation of the entire economic system,
including the labour market, will result in increased flexibility,
competitiveness and investment.
o This approach believes that trade unions ought not to be recognised and
that the absence of legislative interference would benefit both workers and
society.
o However, there is no empirical evidence to suggest linkages between
lowered labour standards and increased competitiveness in the global
market,
• Social justice approach to labour law:
o This approach is premised on the notion that law is a tool to advance the
interests of social justice.
o Moreover, labour law can counteract the inequality of bargaining power
between employers and employees.
o Historically, trade unions were regarded as the primary vehicle through
which to achieve social justice.
o However, in recent times, trade union membership has declined
significantly, and globalisation has eroded the institution of collective
bargaining.
o A contemporary social justice approach to labour law acknowledges
collective bargaining as an important means to define and enforce

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protection for workers but recognises rights as a more significant medium

to promote social justice in the workplace.
▪ South Africa follows a rights-based approach to labour law, as an
extension of the social justice approach, whereby legislation gives
effect to constitutional rights.
Discuss the pre-1994 labour law era and the development of the notion of
the ‘unfair labour practice’. Discuss the post-1994 labour law era and
explain the main purposes of the LRA, the BCEA and the EEA:
• Pre-1994 labour law era:
o The discoveries of diamonds (1867) and gold (1884) initiated the birth of
South African labour law.
o 1922: Industrial strike led by white workers in the mining industry against
attempts to reduce wage levels.
▪ Laid the foundations for the contemporary Labour Relations Act
(LRA).
o 1924: The Industrial Conciliation Act was passed.
▪ The Act only applied to white workers but for the first time, enabled
collective bargaining to occur.
▪ However, it recognised the necessity for facilitating effective
communication between opposing stakeholders i.e. Employers and
employees.
o 1961: Resolution by the International Labour Organisation (ILO), calling for
South Africa’s withdrawal from the organisation based on its apartheid policy
of government.
o 1980: Wiehahn Commission
▪ Culminated in amendments to the Labour Relations Act to include
black workers.
▪ The Commission’s findings resulted in the extension of trade union
rights to black employees, the enactment of a definition of unfair
labour practice and the establishment of the Industrial Court.
o 1980-1994: Industrial Court
▪ The Industrial Court often defined, although inconsistently, unfair
labour practices with the effect of developing and applying the
concept of fairness to the employment relationship.
▪ For the first time, contractual terms in the employment context were
directly subordinated to considerations of fairness and employer
conduct was subjected to greater scrutiny.
• Post-1994 labour law era:
o 1994: South Africa re-joined the ILO as a permanent member state.
o 1996: Enactment of the LRA.
▪ Permits the registration of trade unions.
▪ Regulates the right to strike.
▪ Regulates collective bargaining.
▪ Governs collective agreements.
▪ Establishes specialist dispute resolution forums which provide
individual labour law protection against unfair dismissal.
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▪ Regulates unfair dismissals.

o 1997: Enactment of the Basic Conditions of Employment Act (BCEA).
▪ Introduces maximum hours of work.
▪ Introduces minimum paid leave and notice periods.
o 1998: Enactment of the Employment Equity Act (EEA).
▪ Prohibits unfair discrimination in employment.
▪ Requires larger employers to formulate employment equity plans and
to submit reports to the Department of Employment and Labour.
o 2019: Enactment of the NMWA.
▪ Introduces a national minimum wage that is currently set at R20 p/h
(Note: This is not including domestic and farm workers, who are
entitled to less than R20 p/h).
What is NEDLAC, the CCMA and bargaining councils?
• NEDLAC refers to the National Economic Development and Labour Council.
o This institution provides for the institutionalisation of social dialogue by
engaging representatives of the state, organised business, organised labour
and those that represent community and development interests.
o Its most important functions include: the promotion of the goals of economic
growth; reaching consensus and concluding agreements on matters of
social and economic policy; and considering all proposed labour legislation
before it is submitted to parliament.
• The CCMA is the Council for Conciliation, Mediation and Arbitration.
o The CCMA is the centrepiece of the LRA and serves as the principal
statutory dispute resolution body for those employers and employees who
do not fall within the jurisdiction of a bargaining council.
• Bargaining councils are institutions which promote collective bargaining at a
sectoral level.
o Examples of bargaining councils include the Motor Industry Bargaining
Council and the Building Bargaining Council.
What does the concept ‘decent work’ entail and has this labour law ideal
been met with success in South Africa?
• ‘Decent work’ refers to not only a source of income, but to work that is a source of
personal dignity, family stability, peace in the community and economic growth,
that expands opportunities for productive jobs and employment.
• The fundamental goal of the ILO is the achievement of decent and productive work
for both women and men, in conditions of freedom, equity, security and human
dignity.
• In the ‘Decent Work Agenda’, the ILO identifies the following strategic objectives:
o The promotion of standards and rights at work.
▪ This is to ensure that the constitutional rights of workers are
safeguarded by appropriate legal frameworks.
o The promotion of employment creation and income opportunities.
▪ The goal of this strategic objective is not merely to creation of jobs,
rather the creation of jobs of acceptable quality.
o The provision and improvement of social protection and social security.

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▪ This strategic objective is regarded as fundamental to the alleviation

of poverty, inequality and the burden of care-responsibilities.
o The promotion of social dialogue and tripartism.
▪ Tripartism refers to the relationship between employers’
organisations, trade unions and government.
• Cohen and Moodley, in their article entitled “Achieving ‘decent work’ in South
Africa”, refer to the following five indicators when measuring whether South Africa
has met the strategic objectives of the ILO:
o Employment opportunities
▪ Job creation is pivotal to overcome the glaring work deficit in South
Africa i.e. 29% unemployment.
o Adequate earnings and productive work
▪ The income disparities between genders and the formal and informal
economies must be dismantled before the strategic objectives can
be met.
o Stability and security of work
▪ Job security is a fundamental component of ‘decent work’.
▪ Therefore, the eradication of asymmetrical employment relationships
and the alleviation of vulnerable working positions are pivotal.
o Social protection
▪ Although the right to social security is constitutionally enshrined,
South Africa’s social security system is fragmented and does not
provide adequate coverage for vulnerable workers.
o Social dialogue and workplace relations
▪ Effective social dialogue between government, employers’
organisations and trade unions is necessary to secure equitable
participation in the labour market.
▪ An indicator of effective social dialogue is trade union density.
Therefore, the stark decline in trade union membership in South
Africa is a potential stumbling block to achieving ‘decent work’.
• The authors conclude that South Africa has not attained the goals of ‘decent work’
and that much work is still needed when measuring the country’s progress in terms
of the five indicators.
o It appears that constitutional rights have not filtered down to the informal
sector, where workers remain vulnerable and underrepresented.
o The persistence of gender inequality is a challenge for attaining ‘decent
work’.
o Considering South Africa’s unique situation, it appears that there ought to
be a compromise between more and decent jobs

Study Unit 2: International Standards and the Constitution

Why is it imperative to have a rudimentary knowledge of international
labour standards?
• A meaningful study of labour law is not possible without an understanding of
the institutions that shape international law standards, the basic content of

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those standards and the relationship between them and domestic labour
legislation, for three reasons:
o The Constitution expressly recognises international law as a foundation of
democracy.
▪ The labour standards generated by the ILO constitute an important
source of customary international law.
o International labour standards operate as important benchmarks for the
evaluation of domestic labour legislation and as a basis for the regulation of
global trade.
o International instruments are explicitly recognised by the Constitution as
points of reference for the interpretation of labour legislation.
When was the ILO established, what was (and is) the relation between SA
and the ILO and when did SA re-join the ILO?
• 1919: Establishment of the ILO by the Treaty of Versailles.
• The Union of South Africa was a signatory to the Treaty of Versailles, which also
established the League of Nations (later, the United Nations).
• All members of the League of Nations became founder members of the ILO.
• 1959: Apartheid became a focal point of debate in the ILO.
• 1961: Resolution by the ILO calling for the withdrawal of South Africa, based on
the apartheid policy of government.
• 1964: South Africa gave notice of its intention to withdraw from the ILO.
• 1992: A fact-finding and conciliation commission of the ILO visited South Africa
and later filed a report on the state of labour relations, making specific
recommendations consistent with ILO standards.
• 1994: South Africa re-joined the ILO and has since ratified all its core conventions.
What are the core conventions and what do they deal with?
• The ILO’s Governing Body, in recognising the proliferation of its conventions and
recommendations, selected the most central tenets for adherence by member
states.
• The core conventions are the eight fundamental conventions, which establish
minimum labour standards with which member states ought to comply:
o Freedom of Association and the Right to Organise Convention, 1948
o Right to Organise and Collective Bargaining Convention, 1949
o Forced Labour Convention, 1930
o Abolition of Forced Labour Convention, 1957
o Minimum Age Convention, 1973
o Worst Forms of Child Labour Convention, 1999
o Equal Remuneration Convention, 1951
o Discrimination (Employment and Occupation) Convention, 1958
• The core conventions deal with:
o The rights of trade unions, employers’ organisations and their members and
their right to conduct their activities and programmes without interference
from the state.
o The obligation to promote collective bargaining.
o The minimum age of work.
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o The prohibition against involuntary work exacted under threat of penalty.

o The right to equality in employment.
o The prohibition against discrimination in the workplace.
What is the difference between ILO ‘conventions’ and
‘recommendations’?
• Conventions and recommendations are both types of international labour
standards, adopted by the ILO.
o Conventions:
▪ Embody the most important minimum standards of the ILO;
▪ Are not automatically binding, even on those member states that
voted in favour of the adoption of the convention;
▪ Are capable of ratification; and
▪ Must be adapted into national law by member states.
o Recommendations:
▪ Provide guidelines to member states on how a particular matter might
be regulated;
▪ Are not binding on member states;
▪ Are not capable of ratification; and
▪ May be considered when a convention is implemented under national
law.
Why is it imperative that SA must follow ILO standards and in which court
cases have SA actually adhered to these standards? What was decided in
the court cases?
• South Africa must adhere to ILO standards because:
o The Constitution accords international law a particular status; and
▪ S 232 of the Constitution: Customary international law
• Customary international law is law in the Republic, unless it is
inconsistent with an Act of Parliament.
o The Constitution requires the application of international law when
interpreting South African legislation and the Bill of Rights.
▪ S 233 of the Constitution: Application of international law
• When interpreting any legislation, every court must prefer any
reasonable interpretation of the legislation that is consistent
with international law over any alternative interpretation that is
inconsistent with international law.
▪ S 39 of the Constitution: Interpretation of Bill of Rights
• When interpreting the Bill of Rights, a court, tribunal or forum:
o Must promote the values that underlie an open and
democratic society based on human dignity, equality
and freedom;
o Must consider international law; and
o May consider foreign law.
▪ Note: When interpreting legislation, the courts are required to have
regard both to those international instruments to which South Africa

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has specifically assented and to other international instruments,

more broadly.
• In South African National Defence Union v Minister of Defence (1999), the court
invoked international norms to ascertain the constitutionality of a provision of the
Defence Act that prohibited members of the permanent military force from forming
and joining trade unions.
o Facts:
▪ The Defence Act, which regulates the South African Defence Force
(SADF), contained a provision stipulating soldiers were not entitled
to form and join trade unions.
▪ However, the Constitution protects the rights of freedom of
association and labour relations.
▪ In casu, the Minister of Defence asserted that because soldiers were
not traditional ‘workers’ for purposes of S 23(2) of the Constitution,
they should not be entitled to union protection.
o Legal question:
▪ Should members of the SADF be deemed to be ‘workers’ for
purposes of S 23(2) of the Constitution, thereby entitling them to
register, form and join trade unions of their choosing?
o Court:
▪ In considering the meaning of ‘workers’ in S 23(2) of the Constitution,
the CC made specific reference to a provision contained in one of the
ILO conventions, stipulating that workers and employers, without
distinction, have the right to establish and join organisations of their
choosing.
▪ Moreover, the CC referred to another provision which extends these
guarantees of freedom of association to the armed forces, to the
extent determined by national laws and regulations.
▪ With reference to S 39 of the Constitution, the court confirmed the
judicial obligation to consider international law, holding that the
relationship between members of the permanent force and the
defence force is akin to an employment relationship.
▪ The court concluded that the statutory prohibition on union activity
and membership in the Defence Act was unconstitutional, thereby
ordering severance of the provision.
▪ The Minister of Defence was then afforded six months to publish
regulations regarding the formation and membership of trade unions,
by soldiers.
• Therefore, soldiers are employees and are entitled to
establish trade unions.
• In S 1 of the LRA, specific recognition to South Africa’s international law obligations
is extended:
o The purpose of this Act is to… give effect to obligations incurred by the
Republic as a member state of the International Labour Organisation…
• Moreover, S 3 of the LRA states that:
o Any person applying this Act must interpret its provisions:

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▪ To give effect to its primary objects;

▪ In compliance with the Constitution; and
▪ In compliance with the public international law obligations of the
Republic i.e. The ILO standards.
What does the SADC Charter say and what does the UN Global Compact
entail and what labour rights apply to multi-national corporations?
• SADC Charter:
o Member states are obliged to create an enabling environment to ensure
equal treatment for men and women, and for the protection of children and
young people.
o Moreover, member states are obliged to improve working and living
conditions, advance the protection of health, safety and the environment,
ensure employment and remuneration and improve education and training.
o Note: The SADC Charter cannot be directly enforced, leaving the
responsibility for implementation with national tripartite institutions and
regional structures.
• UN Global Compact:
o The UN Global Compact is a voluntary initiative of the UN and functions as
a significant source of reference in determining ethical corporate conduct
and the nature and extent of corporate social responsibility.
o It urges multi-national corporations to observe the following labour rights:
▪ The freedom of association and the effective recognition of the right
to collective bargaining.
▪ The elimination of all forms of forced and compulsory labour.
▪ The effective abolition of child labour.
▪ The elimination of discrimination in respect of employment and
occupation.
o Note: The obligations established by the UN Global Compact do not directly
bind employers, trade unions or employees.
What is the content and meaning of section 23 of the Constitution?
• S 23: Labour Relations
o S 23(1): Everyone has the right to fair labour practices.
o S 23(2): Every worker has the right:
▪ To form and join a trade union;
▪ To participate in the activities and programmes of a trade union; and
▪ To strike
o S 23(3): Every employer has the right:
▪ The form and join an employers’ organisation;
▪ To participate in the activities and programmes of an employers’
organisation.
o S 23(4): Every trade union and every employers’ organisation has the right:
▪ To determine its own administration, programmes and activities;
▪ To organise; and
▪ To form and join a federation.

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o S 23(5): Every trade union, employers’ organisation and employer has the
right to engage in collective bargaining. National legislation may be enacted
to regulate collective bargaining. To the extent that the legislation may limit
a right in the Chapter, the limitation must comply with S 36(1).
o S 23(6): National legislation may recognise union security arrangements
contained in collective agreements. To the extent that the legislation may
limit a right in the Chapter, the limitation must comply with S 36(1).
Constitutional rights have the potential to affect labour law in three ways.
Explain this in your own words:
• Constitutional rights, in the context of labour law, can be used to:
1) Test the validity of legislation that seeks to give effect to fundamental rights;
o In the case of South African Defence Union v Minister of Defence (1999),
the CC considered whether the absence of a justiciable duty to bargain in
the LRA infringed the constitutional right to engage in collective bargaining.
2) Interpret legislation enacted to give effect to fundamental rights; and
3) Develop the common law
o Murray v Minister of Defence (2008)
Discuss the right to fair labour practices and explain whether it should
only cover workers, both workers and employers or all persons:
• S 23(1): Everyone has the right to fair labour practices.
• Q: Has the wording in S 23(1) broadened the scope of the right beyond the scope
of the employment relationship?
o No.
▪ Cheadle asserts that emphasis ought to be placed on the term ‘fair
labour practices’, rather than the word ‘everyone’. The boundaries of
the right in S 23(1) are circumscribed by reference to ‘labour
practices’ because those are practices which arise from the
relationship between workers, employers and their respective
organisations. Therefore, the right to fair labour practices ought not
to be read as extending the class of persons beyond those classes
envisaged by S 23 as a whole.
• Note: Reference to ‘everyone’ includes employers.
o In NEHAWU v University of Cape Town (2003), the CC held that fairness
must be applied to both employers and employees and that if the rights in S
23(1) were to be guaranteed to workers only, the Constitution should have
said so. This judgment is indicative of the role of labour law in balancing
competing interests.
▪ The interests of employers lie in profit-making and high productivity,
whereas the interests of employees lie in high salaries and
favourable working conditions.
• Note: The ambit of the section should not be restricted to those working in
conditions of formal employment.
o In Pretorius v Transnet Pension Fund (2018), the CC confirmed that the
right to fair labour practices extends beyond formal employment to other

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forms of engagement in work, to protect those persons operating on the

fringes of the employer-employee relationship.
Do soldiers have the right to fair labour practices despite the fact that the
Labour Relations Act 66 of 1995 does not apply to them?
• Murray v Minister of Defence (2008)
o Facts:
▪ Murray worked for the South African Defence Force, as a soldier.
▪ During the course of his work, Murray was subjected to intolerable
behaviour from his employers.
▪ He then approached the High Court for assistance, arguing that his
employer perpetrated a constructive dismissal.
▪ Counsel for the Defence Force asserted that since he was a soldier,
the LRA did not apply to him.
▪ Therefore, Murray argued the non-application of the LRA to soldiers
meant that he was entitled to directly invoke S 23(1) of the
Constitution and bypass the CCMA.
▪ Moreover, he argued in favour of development of the common
surrounding the concept of ‘unfair dismissal’ to afford constitutional
protection to those workers falling outside the ambit of the LRA.
Is there a constitutional duty to engage in collective bargaining and can
an employee rely on the constitutional provision despite the fact that the
Labour Relations Act 66 of 1995 regulates this aspect?
• S 23(5): Every trade union, employers’ organisation and employer has the right to
engage in collective bargaining. National legislation may be enacted to regulate
collective bargaining. To the extent that the legislation may limit a right in the Chapter,
the limitation must comply with S 36(1).
o Although the LRA promotes and facilitates collective bargaining through
freedom of association, organisational rights and the right to strike and picket,
it does not establish an enforceable duty to bargain.
o Q: Does the right to engage in collective bargaining in S 23(5) encompass a
duty to bargain?
▪ Cheadle, in answering this question, argues that the right to engage in
collective bargaining is composed of three elements:
1) The freedom to bargain collectively
2) The right to use economic power
3) The positive right to bargain
▪ Cheadle asserts that S 23(5) does not establish an enforceable duty to
engage in collective bargaining based on three grounds:
1) An enforceable duty to bargain would entail more than just a right
because it would require complex policy choices regarding the
form and level of collective bargaining required.
2) International labour standards and foreign jurisdictions do not
promote a duty to bargain, favouring the position that collective
bargaining, if it is to be effective, must assume a voluntary quality.

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3) The wording in S 23(5) does not indicate that there is an

enforceable duty to engage in collective bargaining.
o In the SANDU (I, II & III) cases, the nature and extent of the constitutional right
to engage in collective bargaining were considered.
▪ SANDU I (2003):
• The SANDF was not obliged to bargain collectively with the
SANDU and the withdrawal of the SANDF from the negotiations
was found to have been reasonable.
• S 23(5) of the Constitution does not impose an obligation upon an
employer to bargain collectively with a trade union and neither is
there any legislative duty to do so.
▪ SANDU II (2003):
• The High Court held that S 23(5) grants a trade union a right to
engage in collective bargaining with an employer and places a
concomitant duty on the employer to bargain with the trade union.
▪ SANDU III (2003):
• The High Court held that S 23(5) grants a trade union a right to
engage in collective bargaining with an employer and places a
concomitant duty on the employer to bargain with the trade union.
o All three SANDU cases were heard on appeal by the SCA
simultaneously, where it was held that:
▪ “...the Constitution, while recognising and
protecting the central role of collective bargaining in
our labour dispensation, does not impose on
employers or employees a judicially enforceable
duty to bargain. It does not contemplate that, where
the right to strike is removed or restricted, but is
replaced by another adequate mechanism, a duty
to bargain arises.”
o Therefore, there is no enforceable duty to engage in
collective bargaining.

Study Unit 3: Identifying the Elusive Employee

Why is it so important to identify if a person forms part of an employment
relationship?
• It is important to identify if a person forms part of an employment relationship
because that will determine whether the traditional protection afforded to
‘employees’, will extend to them.
o This illustrates that the absence of an employer-employee relationship, is
unlikely to warrant protection from labour legislation.
o As a precondition for enforcing labour legislation and approaching the
CCMA for relief, one must determine whether a person qualifies as an
‘employee’.
• In modern times, it is increasingly difficult to distinguish between traditional
employment relationships and new forms of work.

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o This suggests that traditional labour legislation has not caught up to the
developments of the Fourth Industrial Revolution.
What are the traditional common-law tests to determine if a person is an
employee?
• In Smit v Workmen’s Compensation Commissioner (1979), the court summarised
a list of factors that, under the common law, illustrated the difference between a
contract of employment and one of independent contracting:
o Contract of employment:
▪ The rendering of personal services forms the object of the contract.
▪ The employee must perform the services personally.
▪ The employer may choose when to make use of the employee’s
services.
▪ The employee must execute the lawful commands and instructions
of the employer.
▪ The contract of employment terminates on the employee’s death.
▪ The contract of employment terminates on the expiry of the period of
service in the contract.
o Independent contractor:
▪ The performance of specified work or the achievement of a specified
result forms the object of the contract.
▪ The contractor may perform the services through others.
▪ The contractor must perform the work or produce the specified result
within the period fixed by the contract.
▪ The contractor, although subservient to the contract, does not
perform their services under the supervision or control of the
employer.
▪ The contract does not necessarily terminate on the contractor’s
death.
▪ The contract terminates on the completion of work or on the
production of the specified result.
o In Colonial Mutual Life Assurance Society v MacDonald (1931), the court
distinguished between the locatio conductio operarum and the locatio
conductio operis, in determining whether an insurance agent was an
employee.
▪ Locatio conductio operarum refers to the contract of service where
parties agree on the services to be rendered and the remuneration
to be paid i.e. The contract of letting and hiring of services.
▪ Locatio conductio operis refers to the situation where one person
undertakes to perform or execute a particular piece of work and they
promise to produce a certain specified result i.e. The contract
between a principal and an independent contractor.
▪ The LRA “Code of Good Practice: Who is an employee” makes a
similar distinction between an ‘employee’ and an ‘independent
contractor’, in that:
• An ‘employee’ makes over their capacity to produce another;
and

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o In other words, employees are remunerated for the

potential to render services to the employer.
• An ‘independent contractor’ is someone whose commitment is
the production of a given result.
o In other words, independent contractors are
compensated for the completion of a piece of work or
for a desired end-result.
o The courts have developed a number of tests for distinguishing between
employees and independent contractors, including the ‘supervision-and-
control test’, ‘dominant-impression test’ and the ‘economic-dependency
test’.
Explain the statutory definition of ‘employee’, the exclusions as well as
the test of the SITA v CCMA case:
• The LRA defines an ‘employee’ as:
o 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
o Any other person, who in any manner, assists in carrying on or conducting the
business of an employer.
• The same definition of ‘employee’ has been included in the BCEA and the EEA.
o This definition is too wide and non-descriptive for courts to invoke consistently.
o Therefore, the courts have defined employment by referring to the common-law
indicators of employment developed in earlier cases i.e. Smit v Workmen’s
Compensation Commissioner.
o Arguably, the only useful portion of the definition is the exclusion of independent
contractors.
• Per the judgment in State Information Technology Agency (SITA) (Pty) Ltd v CCMA
(2008), the focus has shifted from the formal contract of employment to the existence
of an employment relationship, in determining whether someone qualifies as an
‘employee’ for purposes of invoking legislative protection.
o In casu, the court was not concerned with the existence of a valid contract of
employment but enquired into the existence of an employment relationship.
o Ultimately, the court concluded that there is no single factor that independently
and conclusively determines the existence of an employment relationship.
Therefore, a court should consider all aspects of the relationship using the
‘dominant impression’ obtained from the investigation.
o However, the court formulated the following primary criteria for the existence of
an employment relationship, to determine whether a person qualifies as an
‘employee’:
1) An employer’s right to supervision and control over the employee i.e.
The presence of a disciplinary code to which employees are subject.
2) Whether the employee forms an integral part of the organisation with the
employer i.e. The provision of a compulsory work uniform and office
space.
3) The extent to which the employee is economically dependent on the
employer.
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What does the presumption as to who is an employee entail?

• In response to ILO Recommendation 198 concerning the employment relationship,
South Africa introduced a statutory presumption in favour of employment, under
certain circumstances.
• S 200A of the LRA and S 83A of the BCEA contain a rebuttable presumption of
employment, operating in favour of those persons earning below the prescribed
threshold amount of R205 433.30 per annum.
o The presumption deems any person to be an employee if that person:
▪ Alleges their employment in terms of the LRA or BCEA;
▪ Earns below R205 433.30 per annum;
▪ Renders services to another person; and
▪ Any one of the following seven factors is present in the relationship:
1) The manner in which the person works is subject to the control or
direction of another person.
2) The person’s hours of work are subject to the control or direction
of another person.
3) In the case of a person who works for an organisation, the person
forms an integral part of that organisation.
4) The person has worked for that other person for an average of at
least 40 hours per month, over the last three months.
5) The person is economically dependent on the other person for
whom they render services.
6) The person is provided with the tools of trade or work equipment
by the other person.
7) The person only works or renders services to one person.
▪ The presumption applies irrespective of the form of the contract i.e.
Indicative of the shift in focus from the formal contract of
employment to the existence of an employment relationship.
▪ Note: The rebuttable presumption does not alter the statutory
definition of ‘employee’. It operates merely as an evidentiary device
calculated to switch the onus of proof of employment, in
circumstances where any one of the indicators is established, to the
employer.
What are the so-called non-standard forms of employment and what
protection can labour broker employees, fixed-term employees and part-
time employees rely on?
• ‘Non-standard forms of employment’ is an umbrella term used to describe different
employment arrangements that deviate from the traditional employer-employee
relationship.
• In South Africa, three categories of precarious or non-standard employment are
recognised and protected:
o Employees placed by ‘temporary employment services’ (TES) or labour
broker employees;
o Fixed-term employees; and
o Part-time employees.

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• Temporary employment services (TES) or labour broker employees:

o S 198 of the LRA defines a TES as:
▪ Any person who, for reward, procures for or provides to a client other
persons:
• Who perform work for the client; and
• Who are remunerated by the temporary employment service.
o This form of non-standard employment involves a triangular work
arrangement between the TES, an employee and a client.
▪ One author suggests that triangular relationships exist where the
recruitment, dismissal and employment functions conventionally
performed by the employer are outsourced to an intermediary or a
TES.
▪ TES only create a commercial agreement and not an employment
contract between the TES and the client.
• Therefore, the TES and not the client, concludes an
employment contract with the employee.
o The LRA provides that the TES is the employer of the
person whose services have been procured for or
provided to a client, and not the client itself.
o The LRA obliges TES’ to provide its employees with
written particulars of employment in accordance with
provisions of the BCEA. The effect of this provision is
one of clarity for employees – indicating to them who
their employer is.
• This position stands despite the fact that the employee may
form an integral part of the client’s organisation and in all
probability, works under the client’s supervision and control.
▪ Whilst the TES recruits, employs and places the workers, the TES
employees are issued with instructions from and supervised by the
client at its workplace, without the client having to incur any
employment responsibilities.
• It is for this reason that the triangular relationship is an
unpopular labour construction for many trade unions, who
perceive TES as a modern form of slavery where labour is
bought and sold through an intermediary.
• This is a favourable construction for employers seeking
maximum flexibility and minimum responsibility because they
are not obliged to make UIF deductions and in the event of an
employee dispute, the TES is brought before the CCMA and
not the client.
▪ Therefore, the default position is that the TES is the employer of the
person whose services have been placed with a client.
▪ However, S 198A of the LRA has altered the default position and
improved the conditions for TES employees in a number of ways:
• A TES employee who earns below the threshold amount
(R205 433.30 per annum) and who is not engaged in

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‘temporary services’ is deemed to be an employee of the

client.
• ‘Temporary services’ include the performance of work where:
o The period of service does not exceed three months of
employment;
o The work is rendered as a substitute for an employee
who is temporarily absent; or
o The work falls in any category or is for a period of time,
deemed to be a temporary service by a bargaining
council agreement or sectoral determination.
• Therefore:
o A low-earning person whose services were initially
procured and placed by a TES, will be deemed to be
an employee of the client if they are placed with a client
for a period exceeding three months; and
o A low-earning person whose services were initially
procured and placed by a TES, will be deemed to be
an employee of the client if they are no longer
substituting for an employee of the client who was
temporarily absent.
• S 198A has the effect of entitling an employee to, inter alia,
refer disputes concerning unfair dismissal and unfair labour
practices against the client, who has become their new
employer.

TES

Employee Client

Figure 1: Default TES position (S 198)

o In Assign Services (Pty) Ltd v CCMA (2018), the court held that the deeming
provision in S 198A effects a change in the statutory attribution of
responsibility as employer, resulting in the client become the sole employer
of the TES employee.
▪ Labour Court:
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•
The deeming provision does not have the effect that the client
of the TES becomes the sole employer.
• The common law contract of employment between the TES
and the TES employee remains intact.
• However, the client also becomes the employer in a new
statutory relationship after the expiry of the three-month
period, but only for the purposes of the LRA.
▪ Labour Appeal Court:
• Overturned the judgment of the Labour Court.
• The protection established by the deeming provision seeks to
ensure that TES employees are treated no differently to those
of the client, and to ensure that the deemed employees are
fully integrated into the enterprise as employees of the client.
• The TES remains the employer of the placed employee until
the employee is deemed to be the employee of the client, on
an indefinite basis.
▪ Constitutional Court:
• Upheld the judgment of the Labour Appeal Court.
• Q: Does the deeming provision give rise to a dual employment
relationship where the employee is deemed to be employed
by both the TES and the client, or does it create a sole
employment relationship between the TES employee and the
client?
• The wording of S 198A supports the ‘sole employer’
interpretation, with the effect that the placed employee is
deemed to be the employee of the client and that the client is
the employer of that employee for all purposes i.e. There is no
residual employment relationship with the TES.
o Summary of protective measures afforded to deemed employees, in
accordance with S 198A:
▪ Deemed employees must be treated ‘on the whole not less
favourably’ than the client’s employees performing similar work,
unless there is a justifiable reason for their being treated differently.
▪ TES employees who no longer render ‘temporary services’ are
deemed indefinitely employed.

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TES

Employee Employment contract Client

Figure 2: Altered TES position (S 198A)

• Fixed-term employees:
o S 198B(1) of the LRA defines a ‘fixed-term contract’ as a:
▪ Contract of employment that terminates on:
• The occurrence of a specified event;
• The completion of a specified task or project; or
• A fixed date, other than the employee’s normal or agreed
retirement age.
o The LRA specifies the following protection for fixed-term employees:
▪ Employees employed for longer than 3 months may not be treated
less favourably than those employees employed on an indefinite
basis performing similar work, unless there is a justifiable reason for
differential treatment.
▪ Employers must provide fixed-term employees and employees
employed for an indefinite period with equal access to opportunities
to apply for vacancies.
▪ An offer to employ or renew a fixed-term employee’s contract must
be in writing and state the reason that justifies the fixing of the term
of the contract.
▪ An employee who has been employed to work on a project with a
defined period exceeding 24 months must, when the contract
expires, be paid severance pay of one week’s remuneration for each
completed year of the contract.
o S 198B(2) of the LRA excludes several categories of employees from the
protective ambit of this section:
▪ Employees who earn above the statutory earnings threshold
(R205 433.30 per annum);
▪ Employees of employers with fewer than 10 employees;
▪ Employees of employers with between 10 and 50 employees and
whose business has been in operation for less than 2 years; and

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▪ Employees whose fixed-term contracts are permitted by statute,

collective agreement or sectorial determination.
• An example of this would be a contract of articles, as
determined by the Legal Practice Act.
o The LRA stipulates that an employer may not conclude a fixed-term contract
with an employee which exceeds 3 months in duration unless the employer
can demonstrate a justifiable reason for the fixed-term, such as that:
▪ The employee is replacing another employee who is temporarily
absent from work;
▪ The employer is experiencing a temporary increase in the volume of
work, which will not continue beyond 12 months;
▪ The employee is a student or a recent graduate who is receiving
training or gaining work experience;
▪ The employee is employed to work exclusively on a specific project
that has a defined duration or lifespan;
▪ The employee is a non-citizen who has been granted a work permit
for a specific period;
▪ The employee is performing seasonal work;
▪ The employee’s salary is funded by an external source for a limited
duration;
▪ The employee is working as part of an official public works or job-
creation scheme; or
▪ The employee has reached the normal retirement age applicable in
the employer’s business.
• Therefore, if an employee under a fixed-term contract is
employed for longer than 3 months, without a justifiable
reason, they become indefinitely employed and this could last
up until the age of retirement.
• Part-time employees:
o S 198C(1) of the LRA defines a ‘part-time employee’ as:
▪ Someone who is remunerated, wholly or partly, by reference to the
time that the employee works and who works less hours than a
comparable full-time employee.
o Like fixed-term employees, part-time employees are afforded specific
protective measures under the LRA, including:
▪ The entitlement of part-time employees not to be treated less
favourably than comparable full-time employees doing the same
work;
▪ The right to be provided with equal access to training and skills
development opportunities, as comparable full-time employees; and
▪ The opportunity to be afforded the same access to apply for
vacancies, as comparable full-time employees.
o However, certain categories of part-time employees are exempt from the
protective measures, including:
▪ Employees who earn above the statutory earnings threshold
(R205 433.30 per annum);

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▪ Employees of employers with fewer than 10 employees;

▪ Employees of employers with between 10 and 50 employees and
whose business has been in operation for less than 2 years; and
▪ Employees who work less than 24 hours a month for a particular
employer; and
▪ Employees rendering services during the first 3 months of continuous
employment.
Should sex workers and undocumented migrants be entitled to labour law
protection in South Africa?
• In South African contract law, unlawful contractual terms may render a contract
void ab initio, or voidable at the instance of either party to the agreement.
o The default position is that the law will not enforce contractual terms that are
unlawful or contra bonos mores i.e. The application of the maxim ex turpi
causa non oritur actio (no action arises out of a dishonourable cause).
o The question arises whether labour legislation should only apply to legally
valid and enforceable contracts of employment, or whether it should extend
beyond the construction of the lawful employment contract?
• However, against the backdrop of the constitutional right to fair labour practices in
S 23(1) of the Constitution, the courts have reassessed the consequences that
traditionally attach to unauthorised and illegal work, when considering the
vulnerability of certain workers.
• Position regarding undocumented migrants:
o The findings of the court in Discovery Health v CCMA (2008), changed the
historical position regarding undocumented migrants and their protection
under labour law.
▪ In casu, Discovery Health was prohibited from terminating its contract
with an undocumented migrant, merely on the ground of his status
within the Republic.
▪ Moreover, Discovery Health made the erroneous assertion that
labour legislation was not applicable to the employee, who found
himself in South Africa as an undocumented migrant.
▪ The two significant findings by the court include:
1) The Immigration Act does not have the effect of rendering the
contract of employment of an undocumented migrant
employee, null and void.
• To render such contracts null and void could have the
effect of encouraging unscrupulous employers to
exploit unprotected workers and persons.
• Our lecturer, Professor Van Eck agrees with the
findings in this judgment because it will encourage
employers to be more stringent about ensuring that
their employees possess the requisite work
documentation.

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2) Even if the contract of employment was invalid, the definition

of ‘employee’ does not presuppose the existence of a valid
contract.
• Position regarding sex workers:
o In the case of Kylie v CCMA (2010), the question as to whether sex workers
ought to be protected by labour legislation, came to the fore.
▪ In casu, the Labour Appeal Court was tasked with considering
whether the definition of ‘employee’ extends to persons engaged in
unlawful activities.
• ‘Kylie’ worked as a sex worker in a massage parlour but was
summarily dismissed and her contract terminated without a
hearing, on the grounds of disruptive behaviour and
substance abuse.
• The Labour Appeal Court concluded that within the framework
of the constitutional right to fair labour practices, ‘Kylie’ was
engaged in an employment relationship, even in the absence
of a valid contract with a lawful purpose.
• In making an appropriate order, the Labour Appeal Court
indicated that reinstatement of ‘Kylie’ would be manifestly
against public policy and would not be a competent remedy
under the circumstances. However, the par delictum rule was
relaxed and compensation for unfair dismissal was awarded.
o This judgment illustrates the role of labour law in
preventing the over-exploitation of vulnerable groups of
employees, working in difficult circumstances.
o Moreover, this judgment is not indicative of a general
attitude of the courts towards the treatment of sex
workers. The circumstances experienced by ‘Kylie’
merely fall within the scope of application of the LRA,
in its goals to advance social justice, fairness and
respect for all.
• These cases are both illustrative of the judicial trend towards expanding, rather
than limiting, the scope of application of labour law protection to workers in the
‘grey areas’ or those operating on the fringes of the traditional employment
relationship.
Is the traditional definition of employee sufficient to cover new forms of
work such as platform workers, on-demand workers (such as Uber drivers
and SweepSouth)? How could these workers be protected during the era
of globalisation and the formation of new forms of work?
• The fourth industrial revolution, involving the proliferation of digitalisation,
automation, robotics and artificial intelligence, is accelerating the process by
creating space for new forms of irregular work.
• The digital platform economy, epitomised by online providers of goods and
services such as Uber, represents a significant stage in this development.

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• Commercial platforms have gained ground by making possible the delivery of

goods and services with a minimum of infrastructure and a maximum of flexibility.
• In practice, this tends itself to the negation of workers’ rights though classifying
workers as ‘independent contractors’ even when they are de facto employees, thus
posing new challenges for labour law.
• This article acknowledges the transformative potential of the platform economy as
well as the treat it presents to social justice – it examines three responses from the
standpoint of reconciling technological advance with the advancement of social
justice:
o The first is the ongoing fight against disguised employment in the form of
legal claims by platform workers to be classified as ‘employees’ in order to
exercise labour rights.
o The second is an international campaign for the extension of appropriate
rights to all workers on commercial platforms, regardless of their contractual
status.
o The third is the development of an alternative paradigm based on worker
ownership or collective ownership of platforms, strongly associated with
aspirations for social justice.
• Platform work represents an exceptionally versatile basis for organising the
production of services and goods that could be increasingly capable of creating
decent work opportunities and supplanting existing business models. It notes that,
within the platform economy, two fundamentally different models have emerged:
o Commercial or privately owned platforms (the commercial sector); and
o Collectively owned platforms (the collective sector).
• It concludes that these models could be on converging paths, with important
implications for the realisation of social justice.
• Social justice:
o The idea of social justice was incorporated in the objectives of the
International Labour Organisation (ILO) in 1919.
o There is a limited set of factors which can justify departure from the principle
embodied in the first proposition.
o A modern Constitution such as the South African BoR can be seen as a
reflection of its legal substance.
▪ At a policy level, it is exemplified by the ILO’s Decent Work Agenda.
o Translating these objectives into practice is the challenge: In the labour field,
due to the inherent inequality between employer and employee, it can be
especially problematic.
o In the platform economy, however, conditions of work differ significantly
from those in the physical workplace.
o Despite the prevalence of worker exploitation in the commercial sector, the
platform economy offers new opportunities for the creation of work based
on social justice.
• Platform work:
o Platform work refers to the growing range of online platforms through which
a huge array of services and products are offered in return for payment or
otherwise.

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o Different terms used are ‘on-demand’, ‘gig’ or ‘sharing economy’.

o There are important distinctions arising from the type of product or service
offered and the degree of capital investment and specialised skills that are
required.
• Labour law and the commercial sector:
o Independent contracting = the hallmark of the commercial sector.
▪ This excludes the operation of labour law and is crucial to the
exceptionally profitable nature of many commercial platforms.
▪ However, it also creates scope for worker exploitation in the form of
‘disguised employment’.
▪ As a result, platform work shares many of the negative features of
informal work.
o Three broad responses have emerged:
▪ Litigation by platform workers claiming employee status and rights,
such as the right to minimum wages and protection against dismissal.
▪ Campaign for the extension of appropriate rights to all platform
workers, regardless of legal or contractual status.
▪ The development of an alternative paradigm based on the collective
ownership of the platform.
• As the law stands, workers may remain marginalised even if
they are classified as employees – existing labour rights
hardly address their situation.
• Employees in the platform economy are likely to remain in the
weakest of bargaining positions with little choice but to submit
to an unfair arrangement which disproportionately benefits
clients and platform operators.
• Regulating the commercial sector:
o An alternative approach is implied by the principle that there are
fundamental rights that all workers should enjoy, regardless of their
contractual status.
o The Frankfurt Declaration exemplifies a strategy based on this principle: it
identifies a range of rights that should be available to platform workers, such
as the right to organise and negotiate collectively with platform owners,
minimum wages, social security protection, effective dispute resolution and
transparency in the organisation and management of work.
o It also proposes appropriate mechanisms for determining minimum wages
and social security benefits, based on the realities of the sector.
o Given the diversity of the platform economy, one size cannot fit all.
• Transcending the commercial sector:
o The collective model of platform work differs principally from the commercial
model in that there is no owner independent of the workers who provide the
outputs.
▪ Instead of allowing intermediaries to extract rents, worker-owned
labour platforms may help ensure that workers are paid fair wages
and are not subject to unreasonable working conditions.
o Worker control can be seen as a form of direct democracy.

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o Collective decision making can be effective where participants are directly

involved in the relevant activity and share enough knowledge of its operation
as a basis for informed decisions.
o Whereas the commercial model assumes a dichotomy between owners who
possess that knowledge and workers who do not, the collective model
assumes worker access to knowledge.
o Platform co-operativism is described as a growing international movement
that builds a fairer future of work, yet it is dwarfed by corporate enterprises
such as Amazon, Uber and Facebook.
o Co-operatives are mainly confined to the physical sector and have yet to
make major inroads into the digital sector.
o These barriers may not be unbeatable.
o Co-operatives, it is argued, could clear a path toward efficient and
convenient use of technology for consumers that simultaneously
incorporates fair labour standards.
o Other features of the platform economy may also facilitate the growth of the
collective sector – in contrast to enterprise requiring investment in buildings
and equipment, internet start-ups don’t require much in the way of physical
assets and can have global reach simultaneously.
• Convergence:
o The development of convergence is suggested which will enable
progressive transformation of the commercial sector and which can narrow
the gap and emphasise commonalities, the overarching objectives of social
justice and the quest for workers’ rights in the commercial sector and
objective features of the platform economy that exist in both sectors.
o This will create a basis for reciprocal engagement.
o Over the longer term it is possible to envisage a blurring of distinctions
between commercial and collective platforms and the emergence of hybrid
forms incorporating sustainable features of both.
o Decent work in the cooperative sector could set benchmarks for workers in
the commercial sector.
o The establishment of basic rights for all workers in the commercial sector
would be a major step towards greater inclusivity and worker voice in the
platform economy as a whole.
o Inclusivity of this kind is essential in realising the transformative potential of
the platform economy and would give broader scope to the relative freedom
of innovation and advantages of collective problem-solving that worker-
owned platforms embody.
o The freedom of workers to work when they want to could be realised on a
growing scale and there would be a greater opportunity for the working
population to share in the knowledge and culture reflected in the general
intellect/general social knowledge which is integral to the realisation of
social justice.
• Conclusion:

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o It is accepted that information technology holds great promise for expanding

access to good work – yet worker exploitation remains widespread in the
commercial platform economy.
o Three responses have been noted:
▪ Claims by workers for employee status;
▪ Campaigning for a new floor of rights; and
▪ The development of worker-owned platforms.
o Progress towards the abolition of worker exploitation in the commercial
sector may create conditions for convergence between the two sectors.
o This implies a prospect of decent work in a reconstructed, expanding
platform economy based on collective self-governance or meaningful
worker voice.
o As such it offers a means of overcoming exploitation and regulating for
decent work, both for workers in the existing platform economy and for
marginalised workers elsewhere.
o Social justice involves not only decent work but also access to the goods
and services that are essential to a dignified existence.
Are Uber driver’s ‘employees’ and do Van Eck and Nemusimbori agree?
How does Du Toit suggest that workers in the modern world of work
should be protected?
• Introduction:
o Uber is a mode of transport that operates in 84 countries.
o There are 4000 Uber drivers operating in South Africa.
o Uber undercuts taxi transportation costs for commuters in large cities.
o Consequently, a number of countries have to deal with the question of how
best to regulate Uber.
▪ E.G. Uber has been banned in Germany, Spain and China to protect
their regulated passenger industries. In countries such as England
and the USA, the courts and tribunals have held that Uber drivers
should be regarded as employees for purposes of labour law.
o South African courts are grappling with the conundrum whether Uber drivers
should be labelled as employees of the corporate institution which owns the
mobile application.
• Uber South Africa Technology Services (Pty) Ltd v National Union of Public Service
and Allied Workers (Uber SA Labour Court-case):
o The Labour Court held that Uber drivers are not employees.
o This case suggests that a broader constitutional approach should have been
adopted rather than the narrow contract-based outlook.
• How does Uber work?
o The Uber app facilitates demand between two groups: transportation
providers and users seeking transportation.
o Uber SA is owned and operated by the parent company, Uber BV, which is
incorporated in the Netherlands.
o Uber SA and Uber BV do not own any vehicles in South Africa.

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▪ Uber contends that it only connects transportation providers via

information.
• South Africa’s Uber decisions:
o In Uber SA Labour Court, the court considered a review application against
a ruling pertaining to the employment status of Uber drivers issued by the
CCMA.
o At the CCMA, the commissioner considered whether a number of drivers
who were all deactivated by Uber for some reason were employees of Uber
SA and were eligible to refer their unfair dismissal disputes to the CCMA.
▪ Uber BV and Uber SA emerged as two possible employers of the
Uber drivers.
o In the Labour Court, Uber SA denied that there was any contractual
relationship between it and the drivers. They argued that all contractual
relationships between the drivers and Uber existed between them and Uber
BV and that they were not a party to the dispute. Uber SA further contended
that the drivers were in any event independent contractors of Uber BV.
• Therefore, Uber drivers are not ‘employees’ for purposes of South African labour
law.
How has the Global Commission on the Future of Work responded to the
development of new forms of work during the Fourth Industrial
Revolution?
• “As President, or as Prime Minister, one has the privilege of becoming involved in
many events and processes. But for both of us, to co-chair the Global Commission
on the Future of Work has really been special. This is a reflection on both the issues
involved and the way this Commission has worked. We have, in our personal
histories, a background in industry and in trade unions. From our own experiences
we know the importance of labour, but also the power of joint solutions achieved
through social dialogue between employers and workers. In our respective
countries, South Africa and Sweden, we have seen – and been part of – societal
transformations where changes in the labour market were at the core. Therefore,
we have strongly appreciated the chance to be part of a journey to reflect on the
current global transformations all our societies are going through. The Global
Commission on the Future of Work began its work in October 2017 at the invitation
of the Director-General of the ILO. It met four times in all, the last meeting taking
place in November 2018. It has been an ongoing conversation about all aspects of
the world of work, identifying key challenges and opportunities and trying to come
up with recommendations for action by all stakeholders, including governments,
employers’ and workers’ organizations. The membership of the Commission is a
remarkable concert of accomplished individuals from all over the world, from
different sectors and backgrounds and with different experiences and
perspectives. It has been a profound pleasure to work with such a dedicated and
knowledgeable group. Each member of the Commission has made an
extraordinary effort. Despite busy schedules, everyone has contributed and
participated beyond the call of duty. Members have also done their own research
and participated in smaller policy dialogue sessions to further explore selected

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issues. To write a concise report, narrowing down the key issues, has not been
easy. There may be points of divergence between the members of the
Commission, all of them may not agree with every single proposal, and there were
several good ideas presented during the discussions, including on how to
implement our recommendations, that it has not been possible to include in the
report. The ILO Secretariat, under the leadership of Director General Guy Ryder,
has been central to managing the task of preparing this report, not least by
providing us with the latest research and policy findings. The Commission’s
consulting writer, Sarah Murray, has greatly enriched the text. Our aspiration has
been for the report to portray the urgency of the changes that the world of work is
facing and to provide ideas on how to manage and leverage these transformations.
Our hope now is that this report will inspire further discussions on a full range of
issues – including, for example, how to strengthen democratic space for social
dialogue and how business models can be better aligned with a human-centred
agenda. We have wished to make this report as readable and as relevant as
possible to a broad range of readers – from high-level policy-makers to young
students, workers and business leaders, platform entrepreneurs and informal
workers – because we are convinced that if everyone is aware of the changes, if
everyone is included and works together to find solutions, there is a brighter future
to our world of work.” - Cyril Ramaphosa
• The future of work
o New forces are transforming the world of work. The transitions involved call
for decisive action. Countless opportunities lie ahead to improve the quality
of working lives, expand choice, close the gender gap, reverse the damages
wreaked by global inequality, and much more. Yet none of this will happen
by itself. Without decisive action we will be heading into a world that widens
existing inequalities and uncertainties.
o Technological advances – artificial intelligence, automation and robotics –
will create new jobs, but those who lose their jobs in this transition may be
the least equipped to seize the new opportunities. Today’s skills will not
match the jobs of tomorrow and newly acquired skills may quickly become
obsolete. The greening of our economies will create millions of jobs as we
adopt sustainable practices and clean technologies, but other jobs will
disappear as countries scale back their carbon- and resource-intensive
industries. Changes in demographics are no less significant.
o Expanding youth populations in some parts of the world and ageing
populations in others may place pressure on labour markets and social
security systems, yet in these shifts lie new possibilities to afford care and
inclusive, active societies. We need to seize the opportunities presented by
these transformative changes to create a brighter future and deliver
economic security, equal opportunity and social justice – and ultimately
reinforce the fabric of our societies.
• Seizing the moment: Reinvigorating the social contract
o Forging this new path requires committed action on the part of governments
as well as employers’ and workers’ organizations. They need to reinvigorate
the social contract that gives working people a just share of economic

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progress, respect for their rights and protection against risk in return for their
continuing contribution to the economy. Social dialogue can play a key role
in ensuring the relevance of this contract to managing the changes under
way when all the actors in the world of work participate fully, including the
many millions of workers who are currently excluded.
• A human-centred agenda
o We propose a human-centred agenda for the future of work that strengthens
the social contract by placing people and the work they do at the centre of
economic and social policy and business practice. This agenda consists of
three pillars of action, which in combination would drive growth, equity and
sustainability for present and future generations:
▪ Increasing investment in people’s capabilities:
• In enabling people to thrive in a carbon-neutral, digital age,
our approach goes beyond human capital to the broader
dimensions of development and progress in living standards,
including the rights and enabling environment that widen
people’s opportunities and improve their well-being.
• Stepping up investments in the institutions, policies and
strategies that will support people through future of work
transitions. Young people will need help in navigating the
increasingly difficult school-to-work transition. Older workers
will need expanded choices that enable them to remain
economically active for as long as they choose and that will
create a lifelong active society. All workers will need support
through the increasing number of labour market transitions
over the course of their lives. Active labour market policies
need to become proactive and public employment services
need to be expanded.
• Implementing a transformative and measurable agenda for
gender equality. The world of work begins at home. From
parental leave to investment in public care services, policies
need to foster the sharing of unpaid care work in the home to
create genuine equality of opportunity in the workplace.
Strengthening women’s voice and leadership, eliminating
violence and harassment at work and implementing pay
transparency policies are preconditions for gender equality.
Specific measures are also needed to address gender
equality in the technology- enabled jobs of tomorrow.
Providing universal social protection from birth to old age. The
future of work requires a strong and responsive social
protection system based on the principles of solidarity and risk
sharing, which supports people’s needs over the life cycle.
This calls for a social protection floor that affords a basic level
of protection to everyone in need, complemented by
contributory social insurance schemes that provide increased
levels of protection.

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▪ Increasing investment in the institutions of work:

• Our recommendations seek to strengthen and revitalize the
institutions of work. From regulations and employment
contracts to collective agreements and labour inspection
systems, these institutions are the building blocks of just
societies. They forge pathways to formalization, reduce
working poverty and secure a future of work with dignity,
economic security and equality.
• Establishing a Universal Labour Guarantee. All workers,
regardless of their contractual arrangement or employment
status, should enjoy fundamental workers’ rights, an
“adequate living wage” (ILO Constitution, 1919), maximum
limits on working hours and protection of safety and health at
work. Collective agreements or laws and regulations can raise
this protection floor. This proposal also allows for safety and
health at work to be recognized as a fundamental principle and
right at work.
• Expanding time sovereignty. Workers need greater autonomy
over their working time, while meeting enterprise needs.
Harnessing technology to expand choice and achieve a
balance between work and personal life can help them realize
this goal and address the pressures that come with the
blurring of boundaries between working time and private time.
It will take continued efforts to implement maximum limits on
working time alongside measures to improve productivity, as
well as minimum hour guarantees to create real choices for
flexibility and control over work schedules.
• Ensuring collective representation of workers and employers
through social dialogue as a public good, actively promoted
through public policies. All workers and employers must enjoy
freedom of association and the right to collective bargaining,
with the State as the guarantor of those rights. Workers’ and
employers’ organizations must strengthen their representative
legitimacy through innovative organizing techniques that
reach those who are engaged in the platform economy,
including through the use of technology. They must also use
their convening power to bring diverse interests to the table.
• Harnessing and managing technology for decent work. This
means workers and managers negotiating the design of work.
It also means adopting a “human-in-command” approach to
artificial intelligence that ensures that the final decisions
affecting work are taken by human beings. An international
governance system for digital labour platforms should be
established to require platforms (and their clients) to respect
certain minimum rights and protections. Technological

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advances also demand regulation of data use and algorithmic

accountability in the world of work.
▪ Increasing investment in decent and sustainable work:
• We recommend transformative investments, in line with the
United Nations 2030 Agenda for Sustainable Development.
• Incentives to promote investments in key areas for decent and
sustainable work. Such investments will also advance gender
equality and can create millions of jobs and new opportunities
for micro-, small and medium-sized enterprises. The
development of the rural economy, where the future of many
of the world’s workers lies, should become a priority. Directing
investment to high-quality physical and digital infrastructure is
necessary to close the divides and support high-value
services.
• Reshaping business incentive structures for longer-term
investment approaches and exploring supplementary
indicators of human development and well-being. These
actions can include fair fiscal policies, revised corporate
accounting standards, enhanced stakeholder representation
and changes in reporting practices. New measures of country
progress also need to be developed to account for the
distributional dimensions of growth, the value of unpaid work
performed in the service of households and communities and
the externalities of economic activity, such as environmental
degradation.
• Taking responsibility
o We call on all stakeholders to take responsibility for building a just and
equitable future of work. Urgent action to strengthen the social contract in
each country requires increasing investment in people’s capabilities and the
institutions of work and harnessing opportunities for decent and sustainable
work. Countries need to establish national strategies on the future of work
through social dialogue between governments and workers’ and employers’
organizations. We recommend that all relevant multilateral institutions
strengthen their joint work on this agenda. We recommend in particular the
establishment of more systemic and substantive working relations between
the World Trade Organization (WTO), the Bretton Woods institutions and
the ILO. There are strong, complex and crucial links between trade,
financial, economic and social policies. The success of the human-centred
growth and development agenda we propose depends heavily on
coherence across these policy areas. The ILO has a unique role to play in
supporting the delivery of this agenda, guided by its rights-based, normative
mandate and in full respect of its tripartite character. The ILO can become
a focal point in the international system for social dialogue, guidance and
analysis of national future of work strategies as well as for examining how
the application of technology can positively affect work design and worker
well-being. We further recommend that particular attention be given to the

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universality of the ILO mandate. This implies scaling up its activities to

include those who have historically remained excluded from social justice
and decent work, notably those working in the informal economy. It equally
implies innovative action to address the growing diversity of situations in
which work is performed, in particular the emerging phenomenon of digitally
mediated work in the platform economy. We view a Universal Labour
Guarantee as an appropriate tool to deal with these challenges and
recommend that the ILO give urgent attention to its implementation. We see
this report as the beginning of a journey. Because the ILO brings together
the governments, employers and workers of the world, it is well suited to be
a compass and guide for the journey ahead.
Study Unit 3: Class question
Question 1: A is a handyman. In 2017 he was requested to do a batch of tiling work
for Mega Business Z. Since then Z has made use of A’s services to do all their
maintenance work. Z requests A to provide a quote for each piece of work. Z invariably
accepts all of A’s quotes and he is paid per job. A has become so busy with Z’s work
that he does not do work for anyone else anymore. Z also provides A with a light
delivery vehicle and a laptop. A earns approximately R280 000 per annum and Z has
insisted that their “Quality and Safety Code” must apply to A if he wants any of their
work. Apart from this, A has no office hours and he does not have to apply for leave.
Due to the economic down turn, Z terminates A services with immediate effect. Advise
A whether he can rely on the LRA with the view of lodging an unfair dismissal case.
(15)
Question 2: Suzi (S), a mathematician, entered into a contract with Adam Labour
Brokers Pty Ltd (A). A is registered as a temporary employment service. S is placed
with Client Robot Bank (R) that has 60 employees in their employ. S receives
R300 000 per annum. After 6 months’ employment with R, S approaches you for
advice. She feels aggrieved by the fact that she is not paid the same as her fellow
mathematicians at R who do exactly the same work. Advise S about the following:
a. Who is the employer and why?
(5)
b. Would it have made any difference if R had 5 employees?
(2)
c. Would it have made a difference if S earned R200 000 per annum, and if so, what
difference would it have made?
(7)
d. Assume c. is ‘yes’. Are there 1 or 2 contracts and why do you say so?
(4)
Question 3: Bobo, a lecturer, entered a 12-month fixed-term contract with ABC (the
employer) in terms of which he receives R190 433-00 for the year. ABC has been in
operation for 18 months and employs 25 workers. Bobo renders the same type of
service as Yebo who is appointed on an indefinite basis and receives R300 000 per
annum. Bobo’s agreement does not stipulate why he has been appointed on a fixed
term. ABC does not offer Bobo another contract after the 12 months. Does the LRA
offer any assistance? Why do you say so and exactly what assistance would he be
entitled to?

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(10)

Study Unit 4: The Common Law and BCEA

Discuss the main common-law obligations of employers and employees
respectively:
• There are various rights and duties arising from the employer-employee
relationship, often founded in a variety of sources.
o The most important source of labour-related obligations is legislation, which
extends to most aspects of the employment relationship.
o However, despite the prevalence of and comprehensive cover provided by
labour legislation, the contract of employment remains an important source
of employment-related rights and duties.
o The effect of this is that the CCMA, as the LRA’s primary labour dispute
resolution mechanism, is often circumvented by employees who prefer to
invoke their common law rights, in the civil courts.
▪ Circumvention of the CCMA is achieved by relying on the concurrent
jurisdiction of the High Court and the Labour Court, to entertain
disputes concerning contracts of employment, with matters
concerning unfair dismissal and unfair labour practices as those
ancillaries to the contract itself.
▪ The contract of employment serves as a conduit of implied rights and
duties between the parties.
• Obligations of the employee:
o The obligation to report for duty and to render competent services:
▪ The employee’s main contractual obligation is to place their services
at the employer’s disposal and to render efficient services.
▪ Each employee implicitly guarantees that they are capable of
performing the agreed work and that the work will be performed
diligently and with due care.
▪ The doctrine of vicarious liability regulates the situation where an
employee causes damage to a third party, through their wrongful
acts, in the course of their employment.
• The principle ascribes liability to the employer, rendering them
responsible for the wrongs committed by an employee, who is
acting in the course and scope of their duty. However, public
policy dictates that liability ought to be attributed to both the
employer and the employee.
• Note: Vicarious liability is not codified in South African labour
legislation.
• To sustain a claim based on vicarious liability of an employee,
a claimant must prove:
o The existence of an employment relationship;
o That the employee was at fault; and
o That the harmful act occurred during the course and
scope of their employment to the employer.
• The rationale for the doctrine of vicarious liability is:

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o The desirability of affording claimants’ efficacious

remedies for harm sustained; and
o The desire to incite employers to take positive steps
towards preventing their employees from causing harm
to members of the public.
o The obligation to be respectful and obey lawful instructions:
▪ Although not all employees work under the direct supervision and
control of a supervisor, there is an implied duty on employees to be
respectful towards their employers and obey their lawful and
reasonable instructions.
▪ This obligation is derived from the traditional nature of the contract of
employment, in terms of which it is generally accepted that the
employer is the bearer of authority, whilst the employee is the one
who must comply with the employer’s instructions.
▪ In the case of gross insubordination, which includes the wilful and
persistent refusal to obey the instructions of the employer, a breach
of contract would have occurred, thereby entitling the employer to
terminate the contract of employment.
o The obligation to render services in good faith:
▪ It is common cause that employees are obliged to render services in
good faith by furthering their employers’ business interests.
▪ Upon signing the contract of employment, a number of naturalia
(those contractual terms whose operation is not dependent on
agreement between the parties) come into existence, such as:
• The employee’s fiduciary duty towards their employer, based
on their position of trust and confidence in relation to the
employer-employee relationship;
• The duty to protect the employer’s interests, which includes a
prohibition on theft, dishonesty and bad-mouthing one’s
employer; the duty not to compete with one’s employer; and
the duty not to make secret profit at the employer’s expense.
▪ The obligation to render services in good faith functions as a strict
‘catch-all’ provision, when employees are charged with misconduct.
• In Phillips v Fieldstone Africa (Pty) Ltd (2004), the court
formulated the following indicators regarding the duty of good
faith:
o The rule that the employee is not allowed to make
secret profits at the expense of their employer or to be
in a position in which their own interests conflict with
this duty, is a strict one that allows little room for
exception.
o The rule relates not only to actual conflicts of interest,
but also to conflicts which are a real, sensible
possibility.

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o The defences open to a fiduciary in breach of the duty

are limited. Only full consent of the principal or
employer after complete disclosure will suffice.
• Should a breach of the employee’s fiduciary duty be proven
during disciplinary proceedings, it will generally be accepted
as a sufficient and fair reason for dismissal.
▪ One way in which employers seek to protect their business interests
is through the conclusion of restraint of trade agreements.
• Restraint of trade agreements typically provide that after
termination of the contract of employment, the employee is
prohibited from performing similar work in competition with
their former employer, within a defined area, for a prescribed
period.
• In Magna Alloys & Research SA (Pty) Ltd v Ellis (1984), the
court established that restraint agreements are valid and
enforceable unless they are contrary to public policy.
o Therefore, restraint agreements remain valid until such
time as an employee who contests the enforceability of
the agreement discharges the onus of proving that it is
contrary to public policy.
o The central criterion for determining whether restraint
agreements accord with public policy is that of
reasonableness.
• In Basson v Chilwan (1993), the court concluded that the
following factors ought to be considered when the
reasonableness of a restraint agreement is questioned:
o Whether the restraint covers a legitimate interest of the
one party deserving protection;
o Whether that interest is being prejudiced by the other
party;
o If so, whether that interest so outweighs, qualitatively
and quantitatively, the interest of the other party as to
warrant the latter’s economic inactivity and
unproductiveness; and
o Any aspect of public policy which requires enforcement
of the restraint agreement or not.
• Of recent, courts are becoming more critical of restraint
agreements because the restrictive measures they establish
must be balanced against the employee’s interest in not being
economically inactive and against the constitutional values of
dignity, equality and freedom to engage in economic activity.
• Obligations of the employer:
o The obligation to remunerate the employee:
▪ The principal obligation of employers is the payment of remuneration
to employees for services rendered.

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▪ The amount of remuneration is generally contained in the contract of

employment.
▪ Hypothetically, parties can agree on any salary because there is not,
as yet, a general statutory minimum wage.
▪ However, employees are provided with various protective
mechanisms to improve their employment situations.
• The primary mechanism is the institution of collective
bargaining.
• The LRA provides for the establishment of collective
bargaining councils, the granting of organisational rights to
trade unions and the right to strike.
• These factors promote the process of collective bargaining
which involves:
o Collective bargaining → Binding collective agreement
that contains minimum wages for employees in the
sector covered by the agreement
o The obligation to provide safe working conditions for employees:
▪ At common law, there is a duty on employers to establish safe
working conditions for their employees because it is common cause
that employees often render services under hazardous conditions.
• This duty extends to the provision of safe machinery, safety
clothing and equipment.
▪ An employee affected by their employer’s breach of duty to provide
safe working conditions has a claim for damages against the
employer.
• In the event of the employer’s negligent conduct, the
employee will have a delictual claim for damages.
• In the event of the employer’s failure to provide safety
agreement, where previously agreed upon, the employee will
have a contractual claim for damages.
▪ S 35(1) of the Compensation for Occupation Injuries and Diseases
Act (COIDA) immunises employers against certain delictual claims
by establishing a statutory insurance scheme from which employees,
after having sustained occupational injuries, must claim
compensation.
o The obligation to treat the employee with respect and dignity:
▪ A naturalia of the contract of employment, an employer is duty-bound
not to conduct itself in a manner that is likely to destroy or damage
the relationship of confidence and trust with the employee.
▪ When an employer behaves in an uncaring and abuse manner,
employees are entitled to claim a breach of the reciprocal duty of trust
and confidence.
• By instituting the actio inuriarum, an employee may protect
their dignity with an award of damages, by proving that there
was a wrongful and intentional infringement of an aspect of
personality.

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What is the purpose and scope of the Basic Conditions of Employment

Act 75 of 1997 (BCEA)?
• The BCEA is the principal statute giving effect to statutory minimum terms and
conditions of employment i.e. The BCEA provides a default set of conditions of
employment.
• The stated purpose of the BCEA is:
o To advance economic development and social justice by establishing and
enforcing minimum conditions of employment; and
o By defining the circumstances in which these minimum standards may be
varied.
• The BCEA is underscored by the labour policy known as ‘regulated flexibility’,
which refers to the framework within which a balance between employer and
employee interests can be achieved.
• The BCEA applies to all employers and employees except for:
o Members of the State Security Agency;
o Unpaid volunteers working for organisations serving charitable purposes;
and
o Persons employed on vessels at sea in respect of which the Merchant
Shipping Act applies.
What is the purpose, scope and the minimum standards set by the
National Minimum Wage Act 9 of 2018 (NMWA)?
• The NMWA came into operation on the 1st of January 2019.
• The NMWA establishes a minimum wage of R20 for each ordinary hour worked.
o R20 p/h → R3500 → 40 hours worked per week.
o R20 p/h → R3900 → 45 hours worked per week.
• The national minimum wage for domestic workers and farm workers is less than
R20 p/h:
o Domestic workers: R15 p/h
o Farm workers: R11 p/h
• The NMWA applies to all employment relationships unless the employer provides
more favourable conditions for the employee.
o The NMWA is enforceable through mechanisms established by the BCEA.
o S 4 of the NMWA: Every employer must pay a wage that is not less than the
national minimum wage, and the national minimum wage constitutes a term
of the worker’s contract, except to the extent that the contract, collective
agreement or law provides a more favourable wage.
▪ It is an unfair labour practice for an employer to unilaterally alter an
employee’s wages, hours of work or other conditions of employment
in connection with the implementation of the national minimum wage.

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Apply the most important basic conditions of employment provided by

the BCEA (and the NMWA) to clauses of a contract of employment. These
include provisions in relation to hours of work, overtime, different forms
of leave, notice periods and the minimum wage:
• Within the BCEA, the mechanism of a ‘basic condition of employment’ is used to
fix minimum standards below which an employment relationship may not exist.
• S 4 of the BCEA provides that a basic condition of employment constitutes a term
of any contract of employment, except to the extent that:
o Any other law provides for a more favourable term;
o The basic condition has been replaced, varied or excluded in terms of the
BCEA; or
o A term of the contract of employment is more favourable to the employee
than the basic condition of employment.
• The most important basic conditions of employment include:
o Working time:
▪ S 9(1): Generally, an employer may not require or permit an
employee to work more than 45 hours in any week and:
• If the employee works 5 days or less in a week, not more than
9 hours per day; or
• If the employee works 5 days or more in a week, not more
than 8 hours per day; or
• If the employee serves members of the public, these hours
can be extended by up to 15 minutes per day, but not more
than 60 minutes in a week.
▪ S 10: Overtime work is work performed in excess of ordinary hours
and:
• An employer may not require or allow an employee to work
more than 10 hours’ overtime per week.
• The minimum rate to be paid for overtime is one and a half
times the normal wage, unless the employee agrees to time
off for overtime worked.
o Therefore, an employer may only require an employee
to work overtime if it has been agreed on per the
contract of employment.
o An employee is entitled to 1.5 times their hourly wage
or paid leave, for overtime worked.
▪ S 6(1): The following exceptions are not protected by the statutory
minimum working time:
• Senior managerial employees;
• Employees engaged as sales staff who travel to the premises
of customers and who regulate their own working hours;
• Employees who work less than 24 hours a month for an
employer;
• Employees earning above the statutory prescribed threshold
(R205 433.30 per annum).

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▪ As a general rule, work performed on Sundays and public holidays

attracts payment at double the employee’s ordinary wage.
▪ An employer must grant an employee a meal interval of:
• At least 1 continuous hour after 5 hours of continuous work.
• However, the meal interval may be altered or dispensed with:
o By agreement, the meal interval may be reduced to 30
minutes; or
o Dispensed with if the employee works less than 6 hours
per day.
▪ An employee is entitled to the following rest periods:
• Daily rest periods of at least 12 consecutive hours between
ending and recommencing work; and
• Weekly rest periods of at least 36 consecutive hours which,
unless otherwise agreed, must include Sundays.
▪ Two flexibility measures contained within the BCEA are:
• A compressed working week:
o An employee and their employer can agree;
o That the employee will work up to 12 hours per day
o Inclusive of a meal interval;
o Without receiving overtime pay;
o Provided that the employee does not work more than
45 ordinary hours in any week;
o More than 12 hours overtime in any week; or
o More than 5 days in any week.
• The ability to average hours of work:
o Ordinary hours and overtime;
o Can also be averaged;
o In terms of a collective agreement;
o Over a period of up to 4 months;
o Subject to certain limitations.
o Leave:
▪ Annual leave:
• The BCEA establishes minimum periods of paid leave to
which all employees, irrespective of their earnings threshold
or managerial threshold, are entitled.
• S 20(2): Every employee is entitled to at least 21 consecutive
days’ leave on full remuneration.
o Reference to ‘days’ includes calendar days.
o Annual leave is accrued in a so-called ‘leave-cycle’,
being the 12-month period after commencement of
employment, or the completion of a prior leave cycle.
o Annual leave must be granted not later than 6 months
after the end of a leave-cycle.
o By agreement, an employee can be granted 1 day’s
annual leave on full pay, for every 17 days worked.

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o Upon termination, employees are entitled to

remuneration for any period of leave which accrued but
was not taken during the previous leave-cycle.
▪ Parties are entitled to agree to a forfeiture
provision in respect of leave not taken during the
year preceding the last leave cycle.
o Note: The provisions of the BCEA, conferring rights to
leave, do not apply to those employees who work less
than 24 hours per month for an employer.
o Parties cannot contract out of these minimum leave
provisions i.e. The parties can agree to more annual
leave, but not to less.
• Therefore, the BCEA’s annual leave provisions are
automatically ‘read-in’ to the contract of employment, as an
implied term, even if it is not explicitly agreed on between the
parties.
o If there is a clause contained within a contract of
employment stipulating that an employee is entitled to
only 10 days of paid annual leave, the basic condition
contained in S 20(2) will override the agreement.
o If there is a clause contained within a contract of
employment stipulating that an employee is entitled to
30 days of paid annual leave, the employer cannot
unilaterally alter this provision, unless consensus is
reached with the employee, otherwise this will amount
to an unfair labour practice.
▪ Sick leave:
• An employee’s sick leave is granted in 3-year cycles, after
completion of the first 6 months of employment.
o In each cycle, an employee is entitled to as many days
sick leave that the employee would work in a 6-week
period.
▪ Note: A ‘cycle’ starts when the employee
commences employment.
▪ Example: If an employee works a 5-day week,
they are entitled to 30 days’ paid sick leave in
every 3-year cycle
o In the first 6 months of employment, an employee
accumulates 1 days’ sick leave for every 26 days
worked.
▪ This does not mean that the sick leave cycle
commences only after the employee has been
employed for 6 months.
▪ It merely means that after the first 6 months of
employment, the employee becomes entitled to
the balance of the sick leave cycle i.e. The full

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number of days that the formula allows minus

the number of days sick leave taken during the
first 6 months of employment.
o If an employee has been absent from work for more
than 2 consecutive days or on more than 2 occasions
in any 8-week period, the employer is entitled to require
the employee to produce a medical certificate.
▪ Therefore, if an employee is only absent for 1
day, they need not produce a medical certificate.
o Note: Sick leave does not accrue to an employee.
▪ Maternity leave:
• An employee is entitled to at least 4 months’ unpaid maternity
leave, which she may commence at any time from 4 weeks
before the expected date of birth, or from a date that a medical
practitioner certifies that it is necessary for maternity leave to
be taken, for the health of the employee or her unborn child.
o An employee may not work for 6 weeks after the birth
of her child and an employee who miscarries in the 3rd
trimester of her pregnancy, or who gives birth to a
stillborn child, is entitled to 6 weeks’ leave after the
miscarriage or stillbirth.
• Note: The BCEA does not impose any statutory obligation on
an employer to remunerate an employee during any time
taken for maternity leave. The only statutory right to income
during maternity leave is that which is provided by the
Unemployment Insurance Act.
o However, some employers are more generous than
others and could provide employees with 3-4 months
of full pay for maternity leave.
▪ Family responsibility leave:
• Family responsibility leave may be taken when:
o An employee’s child is born;
o An employee’s child is sick;
o In the event of the death of an employee’s spouse or
life partner, parent, adoptive parent, grandparent, child,
adopted child, grandchild or sibling.
▪ Note: No provision is made for paid family
responsibility leave in the event of the deaths of
parents-in-law.
• An employee who has been employed for longer than 4
months and who works for 4 days per week, is entitled to 3
days’ paid family responsibility leave in every annual leave
cycle.
• An employee may take leave for part of a day or for the whole
day and the employer may require reasonable proof before

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paying for such leave i.e. Production of a death certificate or

notice of a funeral.
o Termination of employment:
▪ A contract of employment may be terminated only on notice of not
less than the following:
• 1 week → Employee has been employed for 6 months or less
• 2 weeks → Employee has been employed for more than 6
months but less than 1 year
• Four weeks → Employee has been employed for 1 year or
more
• Four weeks → Employee is a farm worker or a domestic
worker who has been employed for more than 6 months
▪ Notice of termination must be given in writing and does not affect the
right of a dismissed employee to contest the lawfulness or fairness
of their dismissal.
▪ An employee who unreasonably rejects an offer of alternative
employment is not entitled to severance pay.
▪ S 41: Regulation of severance pay
• When an employee is dismissed on account of an employer’s
operational requirements, the employer must pay the
employee severance pay equal to at least 1 week’s
remuneration for each completed year of continuous service
with that employer.
o Prohibition on the employment of children and of forced labour
▪ S 43(1): A person may not ‘require or permit’ the following:
• A child under the age of 15 years to work;
• A child who is under school-leaving age to work;
• A child to perform work that is inappropriate for a person of
that age; or
• A child’s well-being, physical or mental health, or spiritual,
moral or social development to be placed at risk by the
performance of any work.
▪ Children who are at least 15 years old and are no longer subject to
compulsory schooling in terms of any law are allowed to work in:
• Advertising;
• Sporting; and
• Artistic and cultural activities.
▪ It is a criminal offence to require or permit a child to work in
contravention of the BCEA.
What parental leave are fathers and adoptive parents entitled to? Does
this constitute paid leave in respect of which the employer has to pay up?
• How much leave for fathers?
o Behari “The Effect of the Labour Laws Amendment Bill 2017 on Shared
Parental Responsibilities” (2018) ILJ 2148.

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o In terms of the Amendment Act, an employee who is the parent of a child

is entitled to at least 10 consecutive days of parental leave
▪ Parental leave is a gender-neutral provision which offers both
parents, in most instances fathers and mothers, the time off to
care for and bond with young children.
• Parental leave is different from paternity leave, as paternity
leave exclusively applies to fathers to provide them with
time off from work to care and bond with the new-born baby
and to care for the mother of the baby during the postnatal
period.
▪ An employee who is an adoptive parent of a child who is young
than two years old is entitled to adoption leave amounting to ten
consecutive weeks from the date that the adoption order is
granted, or the child is placed with the prospective parents
pending the finalisation of the adoption order, whichever date
occurs first.
• The right to adoption leave is offered only to one of the
adoptive parents.
• However, the other adoptive parent may rely on parental
leave to provide ten consecutive days of leave.
• Adoptive parties are entitled to the adoption benefits only
if the adopted child is below the age of 2 years old.

Study Unit 5: Equality at Work and Affirmative Action

The nature of equality:
• Employment policies always draw distinctions between employees and groups of
employees, which are often based on immutable or hard-to-change personal
characteristics.
• The right to equality cannot preclude employers from drawing distinctions between
employees or groups of employees or from treating them differently because not
every instance of differential treatment in the workplace is morally or legally wrong.
• It is important to distinguish between ‘mere differentiation’ and ‘unfair
discrimination’.
o Discrimination should not be equated with prejudice.
▪ Discrimination occurs when people are not treated as individuals, or
when characteristics are assigned to people which amount to
generalised assumptions about groups of people.
▪ Prejudice, as a form of hostility, is often based on an irrational,
preconceived opinions.
• The case of Independent Municipal & Allied Workers Union & Another v City of
Cape Town (2005), illustrates the nature of discrimination and the purpose of
equality legislation in eliminating arbitrary decision-making in the workplace, by
insisting that decisions be made based on relevant criteria.
o In casu, a diabetic whose medical condition was under optimal control,
applied to the city council for appointment as a fire-fighter.
o The council refused his application based on its policy that insulin-
dependent diabetics could not be appointed as fire-fighters.

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▪ The policy was premised on the assumption that the employment of

such people would pose an unacceptable risk to their life and safety
and to the lives and safety of others i.e. A generalised assumption
about insulin-dependent diabetics.
o The Labour Court upheld a claim of discrimination, holding that the council’s
policy made generalised assumptions about a group of people and ascribed
them to an individual applicant for employment.
o Moreover, what the city council should have done was determine whether
the applicant’s appointment would have presented an unacceptable safety
risk. Had the city council done so, it would have discovered that the
applicant’s medical condition was under optimal control and that, on the
available medical evidence, appointing him would not have presented an
unacceptable risk.
o The city council failed to distinguish between individual applicants for the
job, according to criteria that were relevant to the choice that had to be made
and therefore discriminated against the applicant based on his medical
condition.
▪ Therefore, this judgment is indicative that equality laws promote
rational decision-making processes and sound economic choices.
• Note: Intention is not necessary in order to establish the existence of
discrimination.
• The right to equality in S 9 encompasses two basic dimensions:
o Formal equality:
▪ Equality as consistency.
▪ All persons must be treated in the same manner irrespective of their
circumstances.
▪ Formal equality embodies a notion of procedural justice rather than
any substantive outcome because it ignores economic and social
disparities between individuals and groups.
o Substantive equality:
▪ Equality of outcomes.
▪ The results or effects of a rule, rather than its form, are important.
▪ Substantive equality involves an examination of the social and
economic conditions of individuals and groups.
▪ Minister of Finance & Another v Van Heerden (2004):
• The court noted the inadequacies of a formal conception of
equality and affirmed the positive duty on the state to promote
the achievement of equality, through substantive equality
measures.
Describe the purpose of the Employment Equity Act 55 of 1998 (EEA):
• S 2 of the EEA stipulates that the purpose of the Act is the achievement of
substantive equality by:
o Promoting equal opportunity and fair treatment in employment through
the elimination of unfair discrimination; and
o Implementing affirmative action measures to redress the disadvantages
in employment experienced by designated groups, in order to ensure
their equitable representation in all occupational levels in the workplace.
• The EEA seeks to give effect to the ILO Discrimination (Employment and
Occupation) Convention 111.
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o Article 1 of Convention 111 identifies ‘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
▪ Such other distinction, exclusion or preference which has the
effect of nullifying or impairing equality of opportunity or treatment
in employment or occupation.
• The following groups are wholly excluded from the application of the EEA:
o Members of the National Defence Force;
o Members of the National Intelligence Agency;
o Members of the South African Secret Service;
o Members of the South African National Academy of Intelligence; and
o The directors and staff of Comsec (Electronic Communications Security
(Pty) Ltd is a company owned by the National Intelligence Agency).
Explain the EEA’s methods of eliminating unfair discrimination and the
implementation of affirmative action:
Part 1: Eliminating unfair discrimination
• Chapter II of the EEA prohibits unfair discrimination in employment and applies to
all employers, irrespective of the size of the business.
• For purposes of Chapter II, ‘employee’ is extended to include applicants for
employment, thereby broadening equality rights to those seeking access to
employment.
• SS 5 & 6 of the EEA contain a generally expressed obligation to promote equality
by eliminating unfair discrimination in the workplace and prohibiting unfair
discrimination on a series of specified and other grounds, including arbitrary
grounds.
o S 5: Elimination of unfair discrimination
▪ Every employer must take steps to promote equal opportunity in the
workplace by eliminating unfair discrimination in any employment
policy or practice.
o S 6: Prohibition of unfair discrimination i.e. Consistent with S 9 of the
Constitution
[1] No person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience, belief,
political opinion, culture, language, birth or on any other arbitrary
ground.
• This list corresponds with that in S 9 of the Constitution.
• This list constitutes the ‘specified grounds’ on which unfair
discrimination is prohibited.
• However, this list is not exhaustive and the use of the word
‘including’ illustrates that there are unspecified grounds which

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may constitute unfair discrimination, as well as the mention of

‘arbitrary grounds’.
[2] It is not unfair discrimination to:
• Take affirmative action measures consistent with the purpose
of this Act; or
• Distinguish, exclude or prefer any person based on an
inherent requirement of a job.
[3] Harassment of an employee is a form of unfair discrimination and
is prohibited on any one, or a combination of grounds of unfair
discrimination listed.
[4] 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 that is directly
or indirectly based on any one or more of the grounds listed, is
unfair discrimination.
[5] The Minister, after consultation with the Commission, may prescribe
the criteria and the methodology for assessing work of equal value
contemplated above.
• The use of the term ‘unfair discrimination’ rather than ‘discrimination’ demarcates
a zone of justifiable classification and differentiation between classes of persons:
o A two-pronged test for unfair discrimination exists:
1. Does the challenged differentiation constitute
discrimination?
• Discrimination occurs when differentiation is made on
illegitimate grounds:
o Specified grounds;
o Unspecified grounds; and
o Arbitrary grounds.
• The first enquiry is the same as the test espoused in Harksen
v Lane.
o If differentiation is based on a specified ground,
discrimination will be established.
o If differentiation is based on an unspecified ground,
whether there is discrimination will depend upon
whether, objectively, the ground is based on attributes
and characteristics which have the potential to impair
the fundamental human dignity of persons as human
beings or to affect them adversely in a serious manner.
o If differentiation is based on an arbitrary ground, there
will be discrimination when the conduct is irrational or
capricious but might not affect a person’s dignity.
2. If yes, is the discrimination unfair?
• The second enquiry involves an interpretation of the EEA in
compliance with ILO Convention 111.
o Burden of proof when allegations of unfair discrimination are made:
▪ S 11: Burden of proof

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• Distinguishes between claims of unfair discrimination on

specified grounds and claims of unfair discrimination on
arbitrary grounds.
• Specified grounds:
o The employer against whom the allegation of unfair
discrimination is made must prove, on a balance of
probabilities, that such discrimination:
▪ Did not take place as alleged; or
▪ Is rational and not unfair or is otherwise
justifiable.
• Therefore, the employer is required to
disprove the factual basis of the
complainant’s claim by disproving any
nexus between the listed ground alleged
by the complainant and the measure
under attack; or to justify the measure
concerned on grounds including, but not
limited to, rationality and fairness.
• Arbitrary grounds:
o The complainant of unfair discrimination must prove, on
a balance of probabilities, that:
▪ The conduct complained of is not rational;
▪ The conduct complained of amounts to
discrimination; and
▪ The discrimination is unfair.
• Therefore, the claimant must prove not
only that the measure is irrational, but
that it is also discriminatory and unfair.
o Note: An employer may be liable for the conduct of an employee who has
contravened a provision of the EEA if it does not take reasonable steps to
ensure that the employee would not act in contravention thereof.
▪ If an employee has contravened a provision contained in the EEA,
the employer must consult all relevant parties and must take all
necessary steps to eliminate the alleged conduct and comply with the
provisions of the EEA.
▪ If an employer fails to take the necessary steps and is it is proved
that the employee has indeed contravened a provision of the EEA,
the employer will be deemed to have contravened that provision, in
conjunction with the perpetrating employee.
▪ Therefore, an employer may escape liability for the conduct of an
employee if it can prove that reasonable steps were taken to ensure
that the employee would not contravene the EEA in a particular
instance.
• Sexual harassment is identified as a form of unfair discrimination:

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o The Code of Good Practice on the Handling of Sexual Harassment Cases

in the Workplace (hereinafter referred to as ‘the Code’) aims to eliminate
sexual harassment in the workplace by:
▪ Providing guidelines on defining sexual harassment;
▪ Identifying the various forms of sexual harassment;
▪ Outlining the test for sexual harassment; and
▪ Frames workplace policies and procedures to deal effectively with
sexual harassment.
o Item 4 of the Code defines ‘sexual harassment’ as:
▪ 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:
• Whether the harassment is on the prohibited grounds of sex
and/or gender and/or sexual orientation;
• Whether the sexual conduct was unwelcome;
• The nature and extent of the sexual conduct; and
• The impact of the sexual conduct on the employee.
▪ Different forms of sexual harassment include:
• Victimisation
o When an employee is victimised or intimidated for
failing to submit to sexual advances.
• Quid pro quo harassment
o When a person influences or attempts to influence an
employee’s employment circumstances by coercing or
attempting to coerce that employee to surrender to
sexual advances.
• Sexual favouritism
o When a person in a position of authority in the
workplace rewards only those who respond to their
sexual advances.
▪ A single incident of unwelcome sexual conduct may be sufficient to
constitute sexual harassment.
▪ The test for sexual harassment involves a combination of both
objective and subjective elements, taking into account both the
perspectives of the complainant and the alleged perpetrator.
o ‘Harassment’ comprises a wide range of conduct, namely:
▪ Physical conduct of a sexual nature
• Touching;
• Sexual assault;
• Rape; and
• Strip searches by, or in the presence of, members of the
opposite sex.
▪ Verbal conduct of a sexual nature
• Unwelcome innuendos;
• Suggestions and hints;
• Sexual advances;

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• Comments with sexual overtones;

• Sex-related jokes;
• Graphic comments about a person’s body;
• Whistling; and
• Sending e-mails or other messages with sexually explicit
content.
▪ Non-verbal conduct of a sexual nature
• Unwelcome gestures;
• Indecent exposure; and
• Display or sending by e-mail of sexually explicit images.
o The Code also requires employers to develop sexual harassment policies
which should, inter alia, stipulate that:
▪ Sexual harassment is a form of unfair discrimination;
▪ Sexual harassment in the workplace will not be permitted or
condoned;
▪ Complainants have the right to follow formal and informal procedures
to address complaints of sexual harassment; and
▪ It is a disciplinary offence to victimise or retaliate against an
employee who, in good faith, lodges a complaint of sexual
harassment.
o Simmers v Campbell Scientific Africa (Pty) Ltd (2014) and Campbell
Scientific Africa (Pty) Ltd v Simmers & Others (2016):
▪ Facts:
• In casu, the senior installation manager (S) of Campbell
Scientific Africa (Pty) Ltd, a contractor (C) and a female
consultant (M) travelled from South Africa to Botswana on a
work assignment and stayed at the same lodge.
• While S and M were waiting in the parking lot for C to settle
the dinner bill, S (25 years older than M) asked M whether she
wanted a lover for the night.
• M made it clear that she was not interested in S’ advances,
indicating too that she had a boyfriend.
• S then asked further questions about M’s relationship with her
boyfriend, suggesting that they should ‘do something’.
• M indicated her wishes to speak to C.
• S lamented about his loneliness and asked if M wanted to go
for a walk, alone with him, or go to his room with him.
• When M refused again, S asked if M would not want to spend
time with him, which she refused again and said that she was
going to bed.
• S repeated his offer to be M’s lover, adding that if she changed
her mind, she should come to his room during the night.
• C then joined them and M left for bed.
• M obtained C’s cell phone number in case S would pester her
during the night.

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o There was no physical touching between S and M and

the advances occurred in a technically speaking
‘single’, but drawn-out event.
• M told C about the conversation with S the next day and he
conveyed it to the company’s managing director when back in
South Africa, who then requested M to provide him with details
about what had transpired.
▪ Internal disciplinary hearing:
• S was found guilty, inter alia, on charges of sexual harassment
and unprofessional conduct.
• S was dismissed from Campbell Scientific Africa (Pty) Ltd.
▪ CCMA:
• S’ dismissal was upheld by the CCMA.
▪ Labour Court:
• S was reinstated with a warning.
▪ Labour Appeal Court:
• The court held that the sexual advances/questions made by S
to M were of a ‘sexual nature’ and constituted sexual
harassment.
• The advances/questions made to M were not just a matter of
S ‘trying his luck’.
• S had been fairly dismissed.
• Direct and indirect discrimination:
o Direct discrimination arises when the criteria on which the differentiation is
based are themselves, unfair.
▪ Motive or intent need not be established for direct discrimination to
be proved but may be relevant when determining an appropriate
remedy.
▪ Swart v Mr Video (Pty) Ltd (1998):
• In casu, the employer sought to employ a shop assistant and
stipulated that applicants must be between the ages of 18 and
25.
• A 28-year old applicant was refused employment because she
did not meet the employer’s age requirements.
• The CCMA held that by limiting the pool of applicants to those
between the ages of 18 and 25, the employer had unfairly
discriminated against the applicant on the grounds of her age.
• The applicant had been treated less favourably because of her
age and the employer could not justify the age limitation it had
placed on recruitment.
o Indirect discrimination occurs when criteria that are fair in form produce
inequitable results i.e. Criteria that are prima facie neutral can subtly
differentiate between employees in a manner that amounts to
discrimination.
• Scope of the prohibition on unfair discrimination:

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o The definition of ‘employment policy or practice’ defines the scope of the

prohibition against unfair discrimination and extends the statutory
prohibition to every aspect of the employment relationship, including but not
limited to:
▪ Recruitment procedures;
▪ Advertising and selection criteria;
▪ Appointments and the appointment process;
▪ Job classification and grading;
▪ Remuneration, employment benefits and terms and conditions of
employment;
▪ Job assignments;
▪ The working environment and facilities;
▪ Training and development;
▪ Performance and evaluation systems;
▪ Promotion;
▪ Transfer;
▪ Demotion;
▪ Disciplinary measures other than dismissal; and
▪ Dismissal.
• Therefore, the definition is broad and captures the
employment relationship in a linear fashion: from access to
employment to termination of the employment relationship.
Part 2: Implementing affirmative action
• Chapter III of the EEA requires designated employers to take affirmative action
measures in their workplaces.
o Affirmative action measures are designed to ensure that suitably qualified
people from designated groups have equal employment opportunities and
are equitably represented in all occupational levels in the workforce of a
designated employer.
o The EEA gives the following examples of affirmative action measures:
▪ Measures to identify and eliminate employment barriers, including
unfair discrimination, which adversely affects people from designated
groups;
▪ Measures designed to further diversity in the workplace based on
equal dignity and respect of all people; and
▪ Making reasonable accommodation for people from designated
groups in order to ensure that they enjoy equal opportunities and are
equitably represented in the workforce of a designated employer.
• ‘Reasonable accommodation’ refers to 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
participate or advance in employment.
o Therefore, affirmative action measures are a tool by which equitable
representation can be achieved in the workplace.

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▪Affirmative action measures are part of a broader strategy to promote

the achievement of equality and should be used by the courts and
employers to assist in social transformation.
o Dudley v City of Cape Town and Another (2008):
▪ A designated employer’s failure to apply affirmative action measures
gives rise to claims for enforcement under Chapter III but not to
claims for unfair discrimination under Chapter II.
▪ Moreover, the prohibition against unfair discrimination cannot
establish a right to affirmative action.
• In other words, there is no ‘bridge’ between Chapters II and III
of the EEA.
• A claim for unfair discrimination under Chapter II must stand
independently of an employer’s obligation to take affirmative
action in terms of Chapter III.
Discuss the exceptions to unfair discrimination with reference to ‘fair
inherent requirements of a job’ and ‘affirmative action’:
• S 6(2) of the EEA stipulates that it does not amount to unfair discrimination to:
o Take affirmative action measures consistent with the purpose of the Act; or
▪ Affirmative action measures must be designed to ensure that suitably
qualified people from designated groups have equal employment
opportunities and are equitably represented in all occupational levels
in the workforce of a designated employer.
▪ Minister of Finance and Another v Van Heerden (2004):
• The CC established a three-pronged test for affirmative action
measures that ‘properly fall’ within the requirements of S 9(2)
of the Constitution:
o Q1: Do the measures target people or categories of
people who have been disadvantaged by unfair
discrimination?
▪ The measures of redress must favour a group
designated in S 9(2) of the Constitution.
▪ The beneficiaries must be shown to be
disadvantaged by unfair discrimination.
o Q2: Are such measures designed to protect or advance
such people or categories of people?
▪ The remedial measures must be reasonably
capable of attaining the desired outcome of
protecting or advancing those disadvantaged by
unfair discrimination.
• Measures which carry a reasonable
likelihood of meeting the desired outcome
are sufficient.
▪ These measures must not be arbitrary,
capricious or display naked preference.

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o Q3: Do the measures promote the achievement of

equality?
▪ This determination requires an appreciation of
the effect of the measure in the context of
broader South African society.
o Therefore, a restitutionary measure that passes the
three-pronged test for affirmative action cannot be
presumed to be unfairly discriminatory.
▪ Reynhardt v University of South Africa (2008):
• The Labour Court held that because UNISA’s targets for the
number of black Deans over the number of white Deans had
already been surpassed in terms of its own employment equity
policy, the appointment of a coloured candidate for the
position of Dean, who was less qualified and less experienced
than the applicant, a white male, who was the most suitable
candidate for the position, amounted to a contravention of S
15(4) of the EEA and violated UNISA’s own employment
equity measures.
• Accordingly, the court held that the applicant had been unfairly
discriminated against based on race, in not being appointed
as Dean.
o Therefore, when targets have been met, the most
suitable candidate should be appointed, and affirmative
action principles do not apply.
▪ South African Police Service v Solidarity obo Barnard (Police &
Prisons Civil Rights Union as amicus curiae) (2014):
• This case is the most comprehensive consideration of the
application of an affirmative action measure as a defence
against a claim of unfair discrimination.
• Facts:
o In casu, Barnard, a white woman, had progressed
through the ranks of the SAPS over a period of 18 years
to the rank of captain.
o An employment equity plan was in place.
o One of its objectives was ‘service delivery
improvement’ across all sectors of the police.
o Barnard applied for promotion to the new post of
superintendent. Two rounds of interviews were held in
which Barnard obtained the highest score, but on both
occasions the post was not filled.
o Barnard claimed that her employer’s refusal to appoint
her to the vacant office of superintendent constituted
an act of unfair discrimination.
• Labour Court:
o The Labour Court found that no consideration had been
given to any principles other than racial representation

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and the decision not to appoint Barnard was reached in

a manner that disregarded the constitutional duty of
police efficiency, a decision which would negatively
impact on service delivery.
▪ Barnard’s non-promotion because of her race
established unfair discrimination and the non-
appointment of suitable black candidates did not
change the fact of discrimination, nor did it
render Barnard’s non-appointment fair.
o The Labour Court found in favour of Barnard.
• Labour Appeal Court:
o The Labour Appeal Court found in favour of the SAPS.
• Supreme Court of Appeal:
o The SCA held that while it was true that the national
commissioner of the SAPS had the power to leave the
post of superintendent vacant, it considered it illogical
that the fact that the only suitable person for the
position was from a non-designated group should
prevent her appointment.
• Constitutional Court:
o The majority held that the national commissioner had
acted rationally and with due regard to the criteria set
out in the employment equity plan and that the decision
not to promote Barnard did not bar her from future
promotions.
▪ The focus of the enquiry rested on Barnard’s
employer’s decision and not on the content of
the employment equity plan. Therefore, the
court only commented on the manner in which
the employment equity plan was implemented
and not on the substantive content contained
therein.
o The CC upheld the national commissioner’s decision to
hold the post of superintendent vacant.
o Note: The outcome of this judgment is referred to as
the Barnard principle because an employer may refuse
to appoint or promote a white female where the specific
level she has applied for is already overrepresented.
o Distinguish, exclude or prefer any person on the basis of an inherent
requirement of a job.
▪ ‘Inherent requirement’ of a job has been adopted from Article 2 of
the ILO Convention 111, which provides that:
• “Any distinction, exclusion or preference in respect of a
particular job based on the inherent requirements thereof shall
not be deemed to be discrimination.”

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▪ Independent Municipal & Allied Workers Union and Another v City of

Cape Town (2005):
• The Labour Court noted that the ‘inherent requirements’ of a
job requires a policy of individual assessment rather than a
blanket ban.
• In casu, the City of Cape Town had a policy in terms of which
diabetics were not employed as fire-fighters, irrespective of
the degree of control over their condition.
o The proper approach would have been to assess the
degree of risk in relation to the individual diabetic
concerned, in carrying out an inherent requirement of
the job and not evaluating the degree of risk emanating
from the condition of diabetes as a whole.
• Therefore, whether a particular condition is an inherent
requirement of a job requires a determination of whether the
employee concerned is capable of meeting the requirement
rather than an uncritical acceptance of the employer’s ‘say-so’
or a blanket policy regarding the requirement.
Dispute procedures and remedies concerning unfair discrimination:
• Disputes concerning allegations of unfair discrimination:
o Disputes must be referred to the CCMA for conciliation, within 6 months
after the act or omission that allegedly constitutes unfair discrimination,
occurs.
o If a dispute remains unresolved after conciliation, any party to the dispute
may refer it to the Labour Court for adjudication.
o Note: All parties may consent to arbitration of the dispute.
• Disputes concerning allegations of sexual harassment, as a form of unfair
discrimination:
o Disputes must be referred to the CCMA for conciliation (within 6 months),
and thereafter for arbitration.
o Parties have an automatic right of appeal to the Labour Court for
adjudication.
• Remedies available to parties at the Labour Court:
o S 50(2) of the EEA provides that, if the Labour Court decides that an
employee has been unfairly discriminated against, it may make any
appropriate order that is just and equitable in the circumstances, including:
▪ Payment of compensation by the employer to the employee;
▪ Payment of damages by the employer to the employee;
▪ An order directing the employer to take steps to prevent the same
unfair discrimination or a similar practice from occurring in the future
in respect of other employees;
▪ An order directing an employer, other than a designated employer,
to comply with Chapter III as if it were a designated employer;
▪ An order directing the removal of the employer’s name from the
register referred to in S 41; or
• S 41: Register of designated employers

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o The Minister must keep a register of designated

employers that have submitted the reports required by
S 21.
▪ The publication of the court’s order.
Describe the terms ‘designated groups’, ‘designated employers’ and
‘suitably qualified’ in terms of the EEA:
• ‘Designated groups’ means black people, women and people with disabilities who:
o Are citizens of the Republic of South Africa by birth or descent; or
o Became citizens of the Republic of South Africa by naturalisation:
▪ Before 27 April 1994; or
▪ After 26 April 1994 and who would have been entitled to acquire
citizenship by naturalisation prior to that date who were precluded by
apartheid policies.
• Note: ‘Black people’ means Africans, Coloureds and Indians.
Moreover, Chinese people who are South African citizens also
fall within the ambit of the definition of ‘black people’ although
no statutory mention is made thereto.
• Note: ‘People with disabilities’ means people who have a long-
term or recurring physical or mental impairment which
substantially limits their prospects of entry into or
advancement in employment.
• ‘Designated employers’ means:
o A person who employs 50 or more employees;
o A person who employs fewer than 50 employees but has a total annual
turnover that is equal to or above the applicable annual turnover of a small
business in terms of Schedule 4 of the EEA (I have attached the Annual
Turnover Threshold to this document as Appendix 1);
o A municipality;
o An organ of state as defined in S 239 of the Constitution, but excluding the
National Defence Force, the National Intelligence Agency and the South
African Secret Service; and
o An employer bound by collective agreement in terms of S 23 or S 31 of the
Labour Relations Act, which appoints it as a designated employer in terms
of this Act, to the extent provided for in the agreement.
• ‘Suitably qualified’ persons are those with:
o Formal qualifications;
o Prior learning;
o Relevant experience; or
o The capacity to acquire, within a reasonable time, the ability to do the job.
Duties of ‘designated employers’:
• A designated employer is required to:
o Consult with its employees;
▪ A designated employer must take reasonable steps to consult and
reach agreement with a representative union or with its employees
or their nominated representatives on the following matters:

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• The conduct of the analysis;

• The preparation and implementation of an employment equity
plan (EEP); and
• The employer’s report to the Director-General of the
Department of Employment and Labour.
o Disclosure of information;
▪ The employer must disclose to the consulting parties all relevant
information that will allow those parties to consult effectively.
• The duty of disclosure enables trade unions and employees
to enforce their rights in terms of the EEA.
o Conduct an analysis in order to identify employment barriers which
adversely affect people from designated groups;
▪ Every designated employer is required to collect information and
conduct an analysis of its employment policies, practices, procedures
by including:
• A profile of the employer’s workforce at each occupational
level in order to determine the degree of underrepresentation
of people from designated groups at each level.
o Prepare an EEP; and
▪ An EEP will attempt to achieve reasonable progress towards
employment equity in that employer’s workforce.
▪ An EEP must contain:
• The objectives to be achieved for each year of the EEP;
• The specific affirmative action measures to be implemented;
• Numerical goals for the achievement of equitable
representation of people from designated groups, together
with the timetable within which these goals are to be achieved
and the strategies by means of which they are to be achieved;
• The timetable for each year of the EEP for the achievement of
goals and objectives, other than numerical goals;
• The duration of the EEP which may not be shorter than 1 year
or longer than 5 years;
• Procedures that will be used to monitor and evaluate the
implementation of the EEP and whether reasonable progress
is being made towards employment equity;
• The internal procedures for resolving any dispute about the
interpretation or implementation of the EEP;
• Persons in the workforce, including senior managers,
responsible for monitoring and implementing the EEP; and
• Any other matters which may be prescribed by regulation.
o Report to the Director-General of the Department of Employment and
Labour on progress made in implementing its EEP.
▪ Designated employers must report to the Director-General annually,
in writing or electronically, on progress made in implementing their
EEP.

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• The first report must be submitted within 12 months after

commencement of the EEA or within 12 months after the date
on which that employer became a designated employer.
• Thereafter, the report must be furnished annually on the first
working day of October.
o The report must be signed by the employer’s CEO and
is a public document.
Powers of the Labour Court:
• The Labour Court has extensive powers in terms of the EEA, including the making
of an order which:
o Requires an employer to comply with a compliance order of an inspector;
o Condones the late filing of documents;
o Directs the CCMA to conduct an investigation to assist the court and to
submit a report to the court;
o Orders compliance with any provision of the EEA;
o Imposes a fine in accordance with Schedule 1 of the EEA;
o Reviews administrative action taken under the EEA; and
o Confirms, varies or sets aside a compliance order.
Jurisdiction of the Labour Court:
• The Labour Court has exclusive jurisdiction to determine any dispute about the
interpretation or application of the EEA.
State contracts:
• Every designated employer who offers to conclude a contract with any organ of
state for the furnishing of supplies or services to that organ or for the hiring or letting
of anything must comply with Chapters II and III of the EEA, dealing with unfair
discrimination and affirmative action.
o Attached to the designated employer’s offer must be a certificate which
serves as conclusive evidence of compliance with the EEA and failure to
comply therewith is sufficient grounds for rejecting any offer to conclude an
agreement or for cancelling an agreement.
o Therefore, designated employers who seek to do business with organs of
state will be forced to comply with Chapters II and III of the EEA.
Study Unit 5: Class question
Question 1: Ms Skosana (S) works at BB Bricks as a bookkeeper. She has been
working there for the past three years and she earns R190 000 per annum. S is in a
same sex relationship and her manager, Mr M, recently became aware of this fact. S
alleges that since M became aware of her sexual orientation she has been excluded
from promotion. She became aware of this during a promotion interview on 1 February
2020 and reported this to her HR division on 5 February. Since then, BB Bricks has
done nothing about this. S has broken down and seen a psychologist. She wants to
know if she can claim against both M and BB Bricks because she was not promoted,
how long she has to refer a case based an unfair discrimination, where she should
refer the matter to be finalised and who bears the onus of proving the case. Advise S.

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(10)
Question 2: Mr Ogunornbi is employed at AB Bank as a financial manager and he
earns one million rand per annum. On 1 October 2019 a position of chief financial
officer was advertised at the bank and the advertisement stated that in making an
appointment, preference will be given to the designated groups as set out in the
Employment Equity Act. Mr Ogunronbi was born in Nigeria and is of Nigerian descent
and he came to South Africa in 2010. Advise AB Bank whether Mr Ogunronbi falls
within the ambit of the designated groups.
(4)
Question 3: Employer XYZ employs 35 employees and needs to fill one position. The
work entails the climbing of ladders and the packing of boxes in a storage facility. The
following candidates apply: Mr A, a black male, who is wheelchair bound; Ms B, a
strong and fit Indian female; and Mrs C, a healthy white female who is 50 years of age.
Answer the following questions.
a. All three candidates are of the view that they have a good chance of being
appointed on the grounds of affirmative action. Without discussing the merit of the
appointment of each candidate, explain whether XYZ is compelled to implement
affirmative action. Added to this, explain whether each of the employees qualify as
a beneficiary of equality legislation?
(7)
b. Assume XYZ has 65 and not 35 employees in its employ. In addition, XYZ’s current
workforce consists of 80% Indian females. XYZ decided to appoint Ms B to the
position and Mr A and Ms C are disappointed. Mr A and Ms C approach you
individually and ask you for advice. Each one of them are of the opinion that they
should have been appointed to the position.
o What are the excuses (or defences) that XYZ could raise against Mr A’s
claim to be appointed?
(3)
o Does Ms C have any argument to be appointed on the ground that Indian
females are already over represented at the workplace? In addition, do
workers have a positive right to claim to be to be appointed to a position on
the grounds of affirmative action and will the courts be prepared to order
such appointment?
(5)
c. Employer XYZ has only recently become aware of the existence of the Employment
Equity Act (EEA). Explain to the owner of XYZ what the main purposes of the EEA
are, what the scope of application of the Act is, and what is understood with the
terms designated groups, suitably qualified persons, employment policies and
practices and inherent requirements of a job. Also explain to employer XYZ what
the main steps are to implement affirmative action
(12)

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Study Unit 6: Unfair Labour Practices

Reflect on the codification of the definition of ‘unfair labour practice’:
• Historical overview of the definition of ‘unfair labour practice’:
o The notion of ‘unfair labour practice’ was introduced in 1982 and was
broadly defined.
▪ This concept encompassed individual and collective labour practices.
▪ There needed to be an employment relationship in existence.
▪ An employee was also capable of committing an unfair labour
practice.
▪ This concept dealt with the notion of fairness, as opposed to
lawfulness.
• Codification of ‘unfair labour practice’ in the LRA:
o The LRA codified the existing definition of ‘unfair labour practice’.
o The definition excludes any voluntary conduct relating to the process of
collective bargaining and is limited to individual employment relationships.
Discuss the content of the current definition of ‘unfair labour practice’ in
terms of the LRA:
• S 186(2) of the LRA defines an ‘unfair labour practice’ as:
o Any unfair act or omission that arises between an employer and an
employee involving:
▪ Unfair conduct by the employer relating to the:
• Promotion;
• Demotion;
• Probation; or
• Training
▪ The unfair suspension of an employee or any other unfair disciplinary
action short of dismissal;
▪ A failure or refusal by an employer to reinstate or re-employ a former
employee in terms of an agreement; and
▪ An occupational detriment, other than dismissal, in contravention of
the Protected Disclosures Act 26 of 2000.
• Therefore, S 186(2) requires:
o That there is a labour practice arising between an employer and employee;
▪ An employment relationship must exist.
o That the conduct must be unfair;
▪ Conduct may take the form of an act or an omission.
o That the specific unfair labour practice must occur during the currency of
employment.
▪ Specific unfair labour practices are contained within S 186(2)(a) to
(d).
▪ ‘Unfair labour practices’ do not occur during or after dismissal of an
employee.
• Scope of S 186(2):
o Unlike the EEA, the definition of ‘employee’ does not extend to applicants
for employment, in the context of unfair labour practices.

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o Only employees may be the victim of unfair labour practices, as defined by

the LRA.
▪ S 186(2)(a) to (d) define ‘unfair labour practices’ by reference to
employer acts or omissions.
o The list of unfair labour practices contained within the LRA is a closed list or
numerus clausus.
▪ The following questions remain largely unanswered by labour
jurisprudence:
• Q 1: Does this closed list amount to a limitation of the
constitutional right to fair labour practices contained within S
23(1) of the Constitution?
• Q 2: Is the limitation represented by the definition justifiable?
o Only justifiable in an open and democratic society
based on human dignity, equality and freedom.
• Q 3: Can employees rely directly on the Constitution to enforce
a right to fair labour practices?
o Public-sector employees have been successful in
directly relying on the Constitution to challenge labour
practices not covered by the LRA.
o It appears that the constitutional right to fair labour practices is wider in
scope than the unfair labour practices defined by the LRA.
Unfair labour practices in the context of promotion:
• In the context of promotion, an employee usually alleges that an employer has
committed an unfair labour practice:
o In refusing to promote them; or
o Where the employer created a reasonable expectation that the employee
would be promoted and then failed to promote them.
▪ Therefore, an employee alleging an unfair labour practice in the
context of a promotion must prove the fact and the unfairness of the
employer’s decision.
• In Dlamini v Toyota SA Manufacturing (2004), the court held that where an
employer has failed to appoint an employee to a promotional position, the CCMA
or the court should be hesitant to interfere with the exercise of management’s
decision in the absence of gross unreasonableness.
o The decision to promote an employee falls within management’s
prerogative.
o The exercise of an employer’s discretion is only reviewable if it was seriously
flawed.
• Rycroft summarised the principles emerging from the Dlamini case as follows:
o The CCMA or the court should be hesitant to interfere with management’s
discretion in the absence of gross unreasonableness;
o The legislature did not intend for the CCMA or the court to assume the roles
of employment agencies;
o The CCMA or the court must ensure that employers do not act unfairly
towards candidates;

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o The CCMA or the court must consider whether a superior candidate was
overlooked on discriminatory grounds contained within S 6 of the EEA; and
o The legislature did not intend for the CCMA or the court to concern
themselves with the reasons for declining to promote an employee, rather
the process that led to the decision not to promote i.e. Procedural and not
substantive.
Unfair labour practices in the context of demotion:
• S 186(2)(a) also concerns demotions of employees.
• An employee alleging demotion must prove the fact of demotion, as well as its
unfairness.
• Examples of demotion include:
o The loss of benefits;
o A diminution in the employee’s status; and
o A change in the status and responsibilities of an employee owing to a
transfer.
Unfair labour practices in the context of probation:
• The Code of Good Practice: Dismissal regulates the position of probationary
employees.
o The Code permits an employer to require a newly appointed employee to
serve a reasonable period of probation before the appointment of the
employee is confirmed.
o The purpose of a probation period is to afford an employer an opportunity
to evaluate the employee’s performance before confirming their
appointment.
o The probationary period should be:
▪ Determined in advance;
▪ Reasonable in duration; and
▪ Determined with reference to the circumstances and nature of the
job.
o Procedural and substantive requirements for a dismissal during probation:
▪ During probation, an employee’s performance should be assessed,
and reasonable evaluation, instruction, training, guidance or
counselling must be given to allow the employee to render a
satisfactory service.
▪ If the employer determines that the employee’s service is
unsatisfactory, the employer should advise the employee of any
aspects in which the employee is failing to meet the required
standards.
▪ The employer may then elect to extend the probation period for the
employee to meet the required standards or to dismiss the employee.
• Any extension should not be disproportionate to the legitimate
purpose of probation i.e. To determine the employee’s
suitability for continued employment.

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• Any dismissal of an employee during probation requires less

compelling reasons from an employer than dismissal after the
probationary period has been completed.
What aspects are covered under the term ‘benefits’ in terms of the
definition of unfair labour practice?
• The labour courts initially gave the ‘benefits’ a narrow meaning, indicating that it
was something other than remuneration.
o ‘Remuneration’ means any payment in money or in kind, or both in money
and in kind, made or owing to any person in return for that person working
for any other person, including the State.
o Schoeman v Samsung Electronics SA (Pty) Ltd (1997):
▪ The Labour Court held that commission claimed by the applicant was
not a ‘benefit’ but was part of the employee’s salary.
▪ A ‘benefit’ is something apart from remuneration and to reduce the
rate of commission of an employee could not be an unfair labour
practice as envisaged in S 186(2)(a) of the LRA.
o Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration & Others (2013):
▪ In casu, the employer had refused to include a 49-year old employee
in an early retirement scheme for employees for the ages of 46 to 59
because only employees from the age of 55 were eligible without any
further qualification on the grounds of ill health.
▪ The commissioner of the CCMA and the Labour Court held that an
early retirement scheme did not constitute a benefit for purposes of
the definition of unfair labour practice.
▪ The Labour Appeal Court differed from the approaches of the CCMA
and the Labour Court, holding that a benefit should be interpreted as
including any benefit to which the employee is entitled:
• As a result of an employment contract;
• As a result of judicial creation; or
• In terms of a policy or practice, subject to the employer’s
discretion.
▪ The employer failed to provide a valid reason why the employee
could not be included in the early-retirement scheme and was found
to have committed an unfair labour practice.
o Therefore:
▪ Where an employee alleges that an employer committed an unfair
labour practice by not granting a benefit, they need not prove a right
to the benefit in terms of contract or otherwise. The employer who
denies the benefit must show that there was a valid reason for
excluding the employee from the benefit.
Unfair disciplinary action short of dismissal: Suspension
• S 186(2)(b) lists suspension as a type of unfair labour practice.
• Suspension can take one of two forms:
o Suspension as a form of disciplinary sanction; or

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o Precautionary suspension pending a disciplinary enquiry.

▪ Not meant to be punitive because the allegation of misconduct has
not been proved.
• For a suspension to be considered fair, at least five conditions must be met:
1) The relevant disciplinary code must be followed.
2) The suspension must not be used to punish the employee.
3) The employee should be informed of the reason for the suspension.
4) The employee should be informed of the length of the suspension, which
must be reasonable.
5) The employee should be paid in full for the period of suspension.
• A suspension for an unreasonably long period is an unfair labour practice.
• Long v SA Breweries (Pty) Ltd (2019):
o The Constitutional Court held that where a suspension is precautionary and
not punitive, there is no requirement to afford the employee an opportunity
to make representations before the employee is suspended.
o Where the suspension is on full pay, any cognisable prejudice to the
employee would be ameliorated.
o Where a contract, collective agreement, regulatory or other measures
affords an employee the right to make representations prior to suspension,
the employee remains entitled to enforce that right other than by way of a
claim of unfair labour practice.
Resolution of unfair labour practice disputes:
• Disputes regarding unfair labour practices must be referred in writing to:
o A bargaining council; or
o To the CCMA for conciliation, if no bargaining council has jurisdiction.
• Disputes must be referred within 90 days of:
o The occurrence of the unfair labour practice; or
o The date on which the employee became aware of the unfair labour
practice.
• If conciliation has failed and the bargaining council or the CCMA has certified that
the dispute remains unresolved, the matter must:
o Be arbitrated by the bargaining council or the CCMA at the employee’s
request.
▪ The arbitrator is given a wide discretion to determine the
appropriate remedy for an unfair labour practice, including:
• Reinstatement;
• Re-employment; and
• Compensation.
o Must be just and equitable; and
o Limited to 12 months’ remuneration.

Study Unit 6: Class question

Employer ABC has 40 employees. On 1 February, ABC arranged a work party for all
its employees. During the celebrations some of the liquor disappeared. ABC suspects
that Ben, Thabo, Moipone and Jack were involved, and the employer adopted different
strategies regarding each one of them. An informant who did not wish to disclose his

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identity says that he thinks that Ben was the kingpin and that the rest who knew about
the dishonesty joined in finishing off the misappropriated goods. Jack was on the verge
of being promoted to team manager and on 15 February it was decided not to consider
him on the grounds of the suspicion against him and he was not offered an interview.
Ben’s status was lowered from the position of head of finance to admin clerk on 28
February.
Moipone was at the end of her probationary period and it was decided to extend her
probation for another 2 years without giving her an opportunity to state her case. Due
to the fact that some empty bottles were found in Thabo’s locker, an amount of R200
was deducted from his salary and the employer decided to cancel his travel allowance.
a. Explain in terms of which legislation (and relevant sections) each of the
employees could possibly claim against employer ABC. Within how long should
they institute proceedings, where should they refer their disputes and what can they
claim. Refer to relevant case law in the answering you’re your question.
(12)
b. Can employer ABC institute an ‘unfair labour practice’ dispute against any of
the employees?
(2)

Study Unit 7: Unfair Dismissal

The statutory meaning of ‘dismissal’ with emphasis on: termination of
employment by the employer; refusal by the employer to renew a fixed-
term contract; and constructive dismissal:
• The definition of ‘dismissal’ is contained in S 186(1) of the LRA and contains six
elements and it is important to be able to identify instances where ‘dismissal’ has
occurred:
o ‘Dismissal’ means that:
▪ An employer has terminated employment with or without notice;
▪ An employee employed in terms of a fixed-term contract of
employment reasonably expected the employer:
• To renew a fixed-term contract of employment on the same or
similar terms, but the employer offered to renew it on less
favourable terms, or did not renew it; or
• To retain the employee in employment on an indefinite basis
but otherwise on the same or similar terms as the fixed-term
contract, but the employer offered to retain the employee on
less favourable terms, or did not offer to retain the employee;
▪ An employer refused to allow an employee to resume work after she:
• Took maternity leave in terms of any law, collective agreement
or her contract of employment; or
• Was absent from work for up to four weeks before the
expected date and up to eight weeks after the actual date of
the birth of her child;

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▪ 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-employer another; or
▪ An employee terminated employment with or without notice because
the employer made continued employment intolerable for the
employee; or
▪ An employee terminated employment with or without notice because
the new employer, after a transfer in terms of S 197 or S 197A,
provided the employee with conditions or circumstances at work that
are substantially less favourable to the employee than those provided
by the old employer.
• Therefore:
o The employee must prove that the termination falls within the definition of
‘dismissal’ in S 186 of the LRA.
▪ The statutory definition of ‘dismissal’ is the ‘gateway’ to unfair
dismissal law.
o The onus then shifts to the employer to prove that the termination occurred
in accordance with:
▪ Fair reasons; and
S 188 of the LRA recognises only three acceptable reasons
for termination:
1) Misconduct;
❖ Not all misconduct warrants dismissal, however the
line between conduct that warrants dismissal and that
which does not is often difficult to draw in practice.
2) Incapacity; and
3) Operational requirements.
➢ The fair reasons reflect the classification introduced by ILO
Convention on the Termination of Employment at the Initiative of
the Employer, 1982.
▪ Fair procedure.
• Important elements under the statutory meaning of ‘dismissal’:
o Termination of employment by the employer, with or without notice:
▪ This ground of dismissal occurs where the employer takes the
initiative to actively terminate the employment relationship.
▪ Prior to the Labour Relations Amendment Act 6 of 2014, the wording
of the section limited its application to the termination of contracts of
employment, rather than the termination of employment.
• Therefore, this section only protected those persons who were
employed in terms of a common-law contract of employment.
• In effect, not all persons who qualified as ‘employees’ could
claim to have been unfairly dismissed for purposes of S
186(1).
▪ However, this section has been amended to incorporate the
termination of ‘employment’ by the employer, as opposed to the
termination of a contract of employment either:

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• Summarily; or
• By giving notice of intention to terminate.
o Termination of employment under the BCEA:
▪ A contract of employment may be terminated
only on notice of not less than the following:
• One week, if the employee has been
employed for six months or less;
• Two weeks, if the employee has been
employed for more than six months but
not more than one year; and
• Four weeks, if the employee:
o Has been employed for one year
or more; or
o Is a farm worker or domestic
worker who has been employed
for more than six months.
▪ Notice of termination must be given in writing
and does not affect the right of a dismissed
employee to contest the lawfulness or fairness
of their dismissal.
▪ Note that this form of dismissal is not always easy to establish
because there might be genuine ambiguity about whether:
• The employer uttered words that could objectively be
construed as a dismissal; or
• An employee intended to resign in the heat of the moment.
o When an employee resigns in the heat of the moment
and subsequently retracts the resignation, a refusal by
the employer to accept the retraction of resignation
constitutes a dismissal.
▪ Furthermore, it is possible for there to be a dismissal before the
employee commences working for an employer.
• A party to a contract of employment may claim unfair dismissal
in circumstances where the employer terminates a contract of
employment prior to the employee commencing work.
o Refusal or failure by an employer to renew a fixed-term contract:
▪ The definition illustrates that not every termination of a fixed-term
contract is a dismissal because ‘dismissal’ means that an employee
reasonably expected the employer:
• To renew a fixed-term contract of employment on the same or
similar terms but the employer offered to renew it on less
favourable terms, or did not renew it; or
• To retain the employee in employment on an indefinite basis
but the employer offered to retain the employee on less
favourable terms or did not offer to retain the employee.
• The employee must be able to establish three requirements:

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1) That there was a reasonable expectation of renewal

of the contract or of retention on an indefinite basis;
• The test to determine the existence of a
reasonable expectation is an objective test
and requires an assessment of all relevant
factors.
• Relevant factors regarding the
reasonableness of the expectation include:
o The terms of the contract;
o Any past practice of renewal;
o The nature of the employment and the
reason for entering into the contract
for the fixed-term;
o Any assurances that the contract
would be renewed; and
▪ i.e. Undertakings by the
employer.
o Any failure to give reasonable notice
of non-renewal of the contract.
2) That the employer refused to renew the contract or
retain the employee on an indefinite basis; or
3) That there was an offer of renewal or retention on
an indefinite basis but on less favourable terms.
o Constructive dismissal:
▪ This ground of dismissal occurs where the employee takes the
initiative to actively terminate the employment relationship.
▪ An employee may terminate employment with or without notice
because the employer made continued employment intolerable for
the employee.
• Although the termination of employment occurs at the
employee’s initiative, this form of termination is regarded as
‘dismissal’ because the conduct of the employer ‘forces’
termination by the employee.
o Examples of intolerable conduct by the employer
include sexual harassment, racism and intimidation.
• The courts apply an objective approach to constructive
dismissal.
o The say-so or perception of events by the employee
cannot establish intolerability.
o The objective approach implies a high standard, such
that the act of resignation by the employee should be
an act of final resort when no alternatives remain.
• Therefore, it is not easy for an employee to win a case based
on constructive dismissal.

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o Employees will struggle to prove constructive dismissal

if they leave prior to going through a grievance
procedure.
• Murray v Minister of Defence (2008):
o The court reiterated that our law and the Constitution
impose ‘a continuing obligation of fairness towards the
employee on the employer when [they] make decisions
affecting the employee in [their] work.’
o Moreover, the employer must be culpably responsible
for the intolerable conditions.
o There is no requirement that the employer must have
wanted or intended to get rid of the employee.
• Considerations relevant to constructive dismissal include:
o The employee must have terminated the employment;
o The employer’s conduct need not amount to a
repudiation of employment;
▪ For example, sexual harassment in the
workplace.
o The employee who claims constructive dismissal must
objectively establish that the situation has become so
unbearable that they cannot be expected to work any
longer;
o The employee must show that they would have
continued working indefinitely, but for the employer
creating the unbearable circumstances; and
o The employee must exhaust all possible remedies
before resigning.
• E.G. If an employer makes things difficult for an employee at
work by, for example, lowering the status of the employee or
issuing repeated warnings, the employee has two options at
their disposal:
o The employee could decide to lodge an unfair labour
practice dispute; or the employee could resign and
refer a case for constructive dismissal to the CCMA.
▪ This choice would depend on the circumstances
of the case.
▪ The employee could decide that working for the
employer has become absolutely intolerable.
Here, the logical choice would be to resign and
refer the case for constructive dismissal to the
CCMA.
▪ However, the employee may wish to continue
employment with the employer but may wish for
a warning to be revoked. Then, the logical
choice would be to refer the case to the CCMA

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or a bargaining council on account of an alleged

unfair labour practice.
• Jansen v Legal Aid South Africa (2018):
o Whilst society in general is moving towards greater
openness regarding mental health, this is not always
the case in the workplace. There are many employees
who may suffer from mental illnesses but due to
intangible symptoms, these are not easily recognised.
Once this condition becomes known to an employer,
they must appreciate the seriousness of the condition
and respond appropriately.
o Facts:
▪ Jansen was employed as a paralegal at Legal
Aid South Africa from 2007 until 2014 when he
was summarily dismissed.
▪ During 2010, Jansen was diagnosed with major
depressive disorder and received several
medical certificates confirming his diagnosis.
▪ Jansen disclosed his condition to his employer
and was enrolled in Legal Aid South Africa’s
wellness programme.
▪ During 2012, Jansen was involved in divorce
proceedings with his wife.
• This put strain on his mental health and
his condition deteriorated.
• Jansen’s condition was exacerbated by
the fact that his line manager represented
his wife in the divorce proceedings – a
fact which he only became aware of at
the appearance of the line manger in the
divorce court.
▪ Jansen informed his employer about his poor
emotional and mental state, which was rapidly
worsening. A clinical psychologist advised his
employer that Jansen’s mental health required
urgent attention. The employer ignored this
advice and proceeded to engage with Jansen on
various disputes regarding misconduct.
▪ On the 7th of November 2013, whilst Jansen was
away from work on sick leave, his line manager
visited his residence and issued him with a
charge sheet for misconduct.
• Note that this was a charge sheet for
misconduct and not incapacity.
• His ‘misconduct’ was attributed to, inter
alia, absence from work as a result of his

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coping mechanism which involved him

disengaging from the world and locking
himself in his room for days on end.
▪ At the disciplinary proceedings, Jansen raised
the defence of his mental condition. The
employer refused to consider this, and the
chairperson disregarded the reports and
medical certificates submitted by medical
practitioners in support of this contention.
• Jansen was found guilty of the charges
against him and was summarily
dismissed.
▪ Jansen then issued a claim against his former
employer in the Labour Court in Cape Town.
▪ The Labour Court held that at all relevant times,
the employer was aware that Jansen was
suffering from a severe mental condition and
failed to consider his mental state when he was
perpetrated for misconduct.
▪ The Labour Court held that the true reason for
Jansen’s dismissal was, in fact, his mental
condition and not his alleged misconduct.
▪ Moreover, the employer was required to take
steps to reasonably accommodate Jansen and
instead of conducting a disciplinary hearing for
misconduct, should have conducted an
incapacity inquiry.
▪ The Labour Court awarded retrospective
reinstatement of Jansen, which resulted in him
receiving five years of back-pay. Furthermore,
he received six months’ remuneration as a form
of compensation for the distress caused to him
as a result of the employer’s actions.
▪ Therefore, the dismissal of an employee who
suffers from a mental condition, of which the
employer is aware, for misconduct in
circumstances where the acts of misconduct are
inextricably intertwined with the employee’s
mental illness constitutes an automatically unfair
dismissal and unfair discrimination.
o Lessons from Jansen:
▪ Employers should take the mental health of their
employees seriously and ought to be mindful of
the stigma attached to mental illness.
▪ Employees are often to reluctant to disclose
these conditions and thus, employers should

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create a culture of openness and understanding

that fosters a safe space for disclosure.
▪ Employees must be reassured that they will not
suffer negative consequences but instead, will
be assisted and supported.
▪ Employers should consider having innovative
policies and processes in place to address
mental conditions.
▪ Moreover, where an employee has disclosed
their mental illness and has submitted medical
certificates confirming the existence thereof,
their condition must be taken into account
should any disputes arise.
What actions do not constitute dismissal?
• Resignation:
o Resignation refers to a unilateral act by an employee that has the effect of
terminating an employment relationship.
o Unless resignation constitutes a constructive dismissal, it is not a ‘dismissal’
for purposes of the LRA.
• Effluxion of time or happening of a specified event:
o A contract of employment may be concluded for a fixed period, to terminate
either on a specified date or on the happening of a specified event, such as
the completion of a project.
• Reaching retirement age:
o When an employee reaches the normal or agreed retirement age, the
contract of employment expires automatically and termination of
employment in the circumstances does not constitute a dismissal as defined
in the LRA.
• Insolvency:
o Until 1 January 2003, S 38 of the Insolvency Act 24 of 1936 provided for the
automatic termination of employment contracts on the insolvency of the
employer.
o After that date, the amended S 38 provides for the suspension of
employment contracts, subject to termination by the trustee or liquidator, or
automatic termination after the lapse of 45 days.
• Mutual agreement:
o Termination of employment where an employer and an employee agree to
terminate a contract of employment by mutual consent is generally not a
‘dismissal’ and is sometimes referred to as termination on account of a
settlement or waiver.
o Mutually agreed termination of employment occurs when there is no
unilateral termination of employment by the employer. In these
circumstances, the contract terminates as a consequence of their
agreement and there is no ‘dismissal’.
• Death:

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o At common law, a contract of employment terminates on the death of either

party.
o Termination of employment in these circumstances is not a ‘dismissal’
although the affected employees have a claim for outstanding wages and
notice pay against the deceased estate of their employer.
• Supervening impossibility of performance:
o A distinction is drawn between temporary and permanent impossibility of
performance.
▪ Where temporary impossibility of performance is concerned, any
obligation to perform in terms of the contract is suspended.
▪ Where permanent impossibility of performance is concerned, the
contract of employment terminates automatically.
• Automatic terminations:
o S 17(3)(a) of the Public Service Act 103 of 1994 stipulates that if an
employee is absent from work for a period of more than one calendar month,
they are deemed to have been discharged for misconduct.
▪ This section should only be used where the employer does not know
where the employee is, where the employee has refused to return to
work or has commenced alternative employment.
Date of dismissal:
• It is important for an employee to know when the date of dismissal is because this
influences the dispute resolution process.
• The LRA stipulates that the date of dismissal is the earlier of the date on which:
o The contract of employment is terminated; or
o On which the employee left the service of the employer.
• If employment is terminated on notice, the date of dismissal is:
o The date on which the notice expires; or
o If it is an earlier date, the date on which the employee is paid all outstanding
salary.
Discuss the resolution of dismissal disputes, onus in dismissal disputes
and the remedies in terms of the LRA:
• Referrals to arbitration:
o S 191 of the LRA: If a dispute concerns the unfair dismissal of an employee
for reasons related to conduct or capacity, the employee alleges
constructive dismissal, or the employee does not know the reason for the
dismissal, the CCMA or a bargaining council must arbitrate the dispute at
the request of the employee if the conciliation was unsuccessful.
▪ Conciliation always precedes arbitration.
o The employee who was dismissed for operational requirements (of the
employer) may elect to refer an unfair dismissal claim to the CCMA or a
bargaining council if that employee was the only one consulted, or if the
employer employs less than ten employees, irrespective of the number of
employees who are retrenched.
▪ If the dismissal relates to operational requirements, the dispute must
be referred to the Labour Court for adjudication.

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▪ However, if only one employee is retrenched, or earns under the

threshold amount, they can elect to refer their dismissal claim to the
CCMA or a bargaining council for arbitration.
o Therefore:
▪ All disputes must first be referred to a compulsory conciliation or
mediation session before the CCMA or a bargaining council.
▪ A dispute concerning unfair dismissal must be referred to the CCMA
or a bargaining council for conciliation, within 30 days from the date
of dismissal.
• A commissioner will attempt to conciliate the dispute and if no
resolution can be found, a certificate of non-resolution will be
issued.
▪ A dispute concerning an unfair labour practice must be referred to
the CCMA or a bargaining council within 90 days for arbitration, if it
remains unresolved after conciliation.
▪ Disputes concerning unfair discrimination must be referred to the
CCMA or a bargaining council within 6 months.
• Referrals to the Labour Court:
o If the dismissal relates to operational requirements, the dispute must be
referred to the Labour Court for adjudication.
▪ Exceptions:
• If only one employee is retrenched or earns below the
threshold amount, they can refer their dispute to the CCMA for
arbitration.
o If the dispute concerns a dismissal for a reason that is automatically unfair,
or if the reason for dismissal is a reason related to the employer’s
operational requirements, the dispute must be referred to the Labour Court
for adjudication within 90 days of the date of the certificate of outcome
issued by the commissioner.
• Onus in dismissal disputes:
o The onus rests on the employee to establish the existence of the dismissal
and, if the employee succeeds in doing so, the employer must prove on a
balance of probabilities that the dismissal was fair.
▪ The fairness of the dismissal depends on fair reasons and fair
procedure.
• Fair reasons are those related to the employee’s conduct or
capacity or are based on the employer’s operational
requirements.
o In the case of dismissals for misconduct, the CCMA does not review the
procedure adopted by the employer in the workplace.
▪ The commissioner is required to make a judgment on the facts,
applying a test of proof on a balance of probability.
o The commissioner must also determine the fairness of dismissal as a
sanction for any misconduct or incapacity of the employee, that is
established.

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▪ This does not mean that in determining the appropriateness of

dismissal as a sanction, the commissioner has unconstrained
discretion to substitute any lesser penalty for an employer’s decision
to dismiss an employee.
o Sidumo v Rustenburg Platinum Mines Ltd & others (2007):
▪ In casu, the Constitutional Court held that it was the commissioner’s
sense of fairness and not the employer’s view that must prevail.
• Although a commissioner is not at liberty to impose the
sanction that they would have imposed in the circumstances,
they must ask whether the employer’s decision to dismiss was
fair.
• This requires a commissioner to make a constrained value-
judgment with due regard to the interests of both the employer
and the employee, including but not limited to:
o The totality of circumstances;
o The reason the employer imposed the sanction of
dismissal;
o The basis of the employee’s challenge to the dismissal;
o The harm caused by the employee’s conduct;
o Whether additional training and instruction may result
in the employee not repeating the misconduct;
o The effect of dismissal on the employee; and
o The employee’s service record.
• Remedies in terms of the LRA:
o S 193 of the LRA: If an employee has been unfairly dismissed, there are
three possible remedies to be awarded.
1) Reinstatement from any date not earlier than the date of dismissal
• Reinstatement implies that the period of service between the
date of dismissal and the reinstatement order remains
unbroken and, despite the dismissal, employment is regarded
as continuous.
• Reinstatement is aimed at placing the employee in the
position that they would have been or that they would have
occupied, but for the unfair dismissal.
• The employee is generally entitled to be paid for any
retrospective period of reinstatement and to the benefits that
accrued to the employee during that period.
2) Re-employment in either the same work or into other reasonably
suitable work from any date not earlier than the date of dismissal
3) Compensation
• Compensation is not the same as common law damages.
• Compensation must be ‘just and equitable’ in the
circumstances, but not more than 12 months’ remuneration if
a dismissal is found to be unfair because:
o The employer did not prove that the reason for
dismissal was a fair reason related to:

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▪ The employee’s conduct;

▪ The employee’s capacity;
▪ The employer’s operational requirements; and/
or
▪ The employer did not follow a fair procedure.
• There is a discretion to award up to 24 months’ compensation
if a dismissal is found to be unfair because:
o Automatically unfair dismissals are extremely serious,
thus warranting 24 months’ compensation.
• Note that where an employee refuses a genuine and
reasonable offer of reinstatement by an employer and the
employee’s refusal is unreasonable, they will not be entitled to
claim compensation.
• Jansen v Legal Aid South Africa (2018):
o Relief:
[60] The applicant seeks reinstatement with
retrospective effect. Considering that the
respondent has not produced any evidence to
show why reinstatement should not be ordered,
this court is bound to order reinstatement as a
primary remedy in terms of S 193(1)(a) of the
LRA.
[61] This court, in exercising its discretion with regard
to the retrospectivity of a reinstatement order,
should ensure that the respondent is not unfairly
financially burdened. There is no evidence to
show that there are factors that would persuade
this court not to order reinstatement with full
retrospectivity.
[64] Considering that this court has concluded that
reinstatement with full retrospective effect would
be the most appropriate remedy for the
automatically unfair dismissal, it would not be just
and equitable to order damages for patrimonial
loss. Such reinstatement would place the
applicant in a position he would have been in, but
for discrimination. Put differently, it would put an
onerous financial burden on the respondent to
award damages twice.
[65] There is uncontested evidence that the
respondent had ignored reports on the applicant’s
mental condition, failed to conduct a capacity
enquiry and to accommodate him. Moreover, the
applicant had been evicted from his rental homes

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following his dismissal and his children suffered

because of his impecuniosity. In my view, it would
be just and equitable to order compensation as a
solatium for the distress the applicant endured on
account of the unfair discrimination by the
respondent. The compensation award must,
therefore, serve as a deterrent.
*Impecuniosity: Having little or no money;
penniless; the state of lacking sufficient money or
material possessions.
*Solatium: Payment or other recompense
for mental suffering or financial or other loss; a
solatium is a payment made to a victim as
compensation for injured feelings or emotional
pain and suffering.
[66] There is no evidence of how a compensation
award would impact the financial position of the
respondent. This could be ascribed to the
respondent’s decision to not call any witnesses at
all.
Order:
[68] In the result, I make the following order:
1. …
2. It is declared that the dismissal of the applicant
was automatically unfair in terms of S 187(1)(f) of
the LRA;
3. It is declared that the respondent unfairly
discriminated against the applicant in terms of S
6 of the EEA;
4. The respondent is ordered to reinstate the
applicant with full retrospective effect;
5. The respondent is ordered to pay the applicant
compensation equivalent to six month’s salary,
calculated at the applicant’s rate of remuneration
on the date of dismissal;
6. …
o Reinstatement and re-employment are the primary remedies to which an
unfairly dismissed employee is entitled, unless:
o The employee does not wish to be reinstated or re-employed;

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o The circumstances surrounding dismissal are such that a continued

employment relationship would be intolerable;
o It is not reasonably practicable for the employer to reinstate the
employee; or
o The dismissal is unfair only because the employer did not follow a
fair procedure.
Discuss the content of the definition of ‘automatically unfair reasons’ for
dismissal:
• S 187(1) of the LRA governs automatically unfair dismissals:
o A dismissal is automatically unfair if the employer, in dismissing the
employee, acts contrary to S 5 or, if the reason for the dismissal is:
▪ S 187(1)(a): That the employee participated in or supported, or
indicated an intention to participate in or support, a strike or protest
action that complies with the provisions of Chapter IV;
• Note: This would arise if the employee is dismissed for
involvement in a procedural or protected strike. Dismissal is
an infringement of the right enjoyed by employees to strike (in
compliance with prescribed procedures) in order to further
their collective interests.
▪ S 187(1)(b): That the employee refused, or indicated an intention to
refuse, to do any work normally done by an employee who at the time
was taking part in a strike that complies with the provisions of Chapter
IV or was locked out, unless that work is necessary to prevent an
actual danger to life, personal safety or health;
• Note: This section protects employees from dismissal if they
are not on strike, but refuse to assist the employer in carrying
out the work of those employees who are lawfully on strike as
this would weaken the right to strike for those participating in
the strike.
▪ S 187(1)(c): To compel the employee to accept a demand in respect
of any matter of mutual interest between the employer and employee;
• Note: If employees do not want to accept, for example, a wage
increase offered by the employer during a strike, the employer
can use pressure such as a lockout, but may not dismiss the
employees as such action would amount to an automatically
unfair dismissal.
▪ S 187(1)(d): That the employee took action, or indicated an intention
to take action against the employer by:
• Exercising any right conferred by this Act; or
• Participating in any proceedings in terms of this Act;
o Note: If, for example, an employee referred an unfair
labour practice dispute to a bargaining council or
CCMA or indicated that s/he intended to refer the
dispute, a dismissal for that reason would be
automatically unfair.

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▪ S 187(1)(e): The employee’s pregnancy, intended pregnancy or any

reason related to her pregnancy;
• Note: This could include dismissing an employee because she
has fallen pregnant and will be entitled to take maternity leave,
or because of illness during the pregnancy or the inability to
carry out certain tasks due to the pregnancy.
▪ S 187(1)(f): That the employer unfairly discriminated against an
employee, directly or indirectly, on any arbitrary ground, including but
not limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family responsibility;
• Note: An employee may not be dismissed because of his/her
race, gender, sex, political or religious beliefs, disability, age
etc. unless it is an absolute requirement of the job. For
example, it may not be automatically unfair to terminate the
services of an airline pilot who loses his/her sight, although the
employer would need to first undertake a comprehensive
incapacity inquiry which may include considering reasonable
accommodation of the employee in alternative positions.
Dismissal based on age may not be automatically unfair if the
employer can show that the employee has reached the agreed
or normal retirement age in that job.
▪ S 187(1)(g): A transfer, or a reason related to a transfer,
contemplated in S 197 or S 197A; or
• Note: The employer dismisses the employee as a result of a
transfer or for a reason related to the transfer of the business
as a going concern (S 197) or in circumstances of insolvency
(S 197A) for reasons not associated with conduct, capacity or
operational requirements.
▪ S 187(1)(h): A contravention of the Protected Disclosures Act, 2000
by the employer, on account of an employee having made a
protected disclosure defined in that Act.
• Note: A protected disclosure relates to an employee ‘blowing
the whistle’ on his/her employer. In other words, disclosing to
an appropriate authority or person the untoward conduct of the
employer or fellow employees.
• Note: You must be able to recognise whether a set of facts deals with an
automatically unfair dismissal.
Explain the reasons that could potentially render a dismissal fair:
• S 187(2) of the LRA contains two defences available to employers:
o A dismissal based on one of the grounds that would ordinarily constitute
unfair discrimination, may be fair if:
▪ The reason for the dismissal is based on an inherent requirement of
the particular job; or

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▪ If a dismissal based on age is made because the employee has

reached the normal or agreed retirement age for persons employed
in that capacity.
• Class example:
o Employer A has a business which has 20 employees in its employ, working
6 days per week (from Monday to Saturday). Employee X is 66 years old
and Employee Z belongs to a religion which prohibits him from working on
Saturdays. Employer A decides to terminate the services of Employees X
and Z, on the grounds of age and the inherent requirements of the job,
respectively. Both Employees X and Z refer their dismissals to the CCMA
on the grounds of automatically unfair dismissal, within the allotted 30 days
of the date of their dismissal. One of the commissioners at the CCMA will
attempt to conciliate the dispute and if unsuccessful, a certificate of non-
resolution will be issued. Employees X and Z will then likely refer their
dispute to the Labour Court for adjudication.
▪ For Employee X, who is 66 years old, Employer A will likely advance
the defence that he has already reached the retirement age and thus,
does not constitute an automatically unfair dismissal.
▪ For Employee Z, who belongs to a religion which prohibits him from
working on Saturdays, Employer A will likely advance the defence
that it is a fair, inherent requirement of the job to work on Saturdays.
• TDF Network Africa (Pty) Ltd v Faris (2019):
o Facts:
▪ Ms Faris was employed by TDF Network Africa (Pty) Ltd, a logistics
and warehousing company, in 2011 as part of a graduate
management programme and then signed a contract of employment
in 2012.
▪ At the time of signing her employment contract, Faris made her
employer aware of the fact that she was a Seventh Day Adventist. In
terms of this religion, Saturday is a holy Sabbath and Ms Faris was
required to observe it by not working on Saturdays but dedicate
herself to spiritual and religious matters.
▪ Due to the substantial stock in the warehouse, stock taking had to be
conducted over weekends, on a monthly basis. A roster was created,
and Ms Faris was required to attend stock taking on weekends.
However, in accordance with her observance of the holy Sabbath,
Ms Faris never attended.
▪ During a meeting regarding her failure to attend work on Saturdays,
Ms Faris’ explanation was that this was due to religious reasons and
requested special accommodation to be made. Ms Faris made
suggestions, including working on Sundays. Her employer refused
such special accommodation on the basis that the stock taking
requirements cannot be changed for one person because there
would be a floodgate of similar requests.
▪ The employer instituted incapacity proceedings against Ms Faris and
dismissed her due to unavailability to work on Saturdays.

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▪ Ms Faris referred an automatically unfair dismissal dispute to the

CCMA and upon receiving the certificate of non-resolution, she
referred the matter to the Labour Court for adjudication.
o Labour Court:
▪ The Labour Court held that the dismissal of Ms Faris was
automatically unfair and ordered 12 months’ compensation.
o Labour Appeal Court:
▪ On appeal, the employer argued that the dominant reasons for the
dismissal of Ms Faris was not her religion, but her refusal to work on
Saturdays. Furthermore, she had failed to prove that her religion
forbade working on Saturdays. The employer’s conclusion was that
Ms Faris’ religion played no role in her dismissal.
▪ The Labour Appeal Court applied the causation test and held that Ms
Faris’ religion was the dominant and proximate reason for her
dismissal because had she not been a Seventh Day Adventist, she
would have been able to work on Saturdays.
▪ The Labour Appeal Court also enquired into whether the
discrimination unduly impaired Ms Faris’ dignity. On this issue, the
court held that the employer had a rigid policy from which it did not
want to depart by making a special exception for Ms Faris. Moreover,
the court held that the employer would not have suffered undue
hardship by accommodating Ms Faris.
• “Without question, an employment practice that penalises an
employee for practicing her religion is a palpable invasion of
her dignity in that it supposes that her religion is not worthy of
protection or respect. The employee is forced to make an
unenviable choice between conscience and livelihood.”
o Lessons from Faris:
▪ This case demonstrates that the right to religion can conflict with
employers’ demands and that a level of tolerance is expected from
employers in a form of taking steps towards the protection of
constitutional rights in the workplace.
▪ However, it is not always the case that the right to religion will prevail
over the employer’s commercial rationale. Each case must be treated
and assessed on its own merit.
o Relevant questions regarding Faris:
▪ On what grounds did Ms Faris refer her dismissal to the CCMA and
the Labour Court?
• Ms Faris alleged that her dismissal was automatically unfair in
terms of S 187(1) of the LRA, on account of her religion.
▪ Why was the dispute not arbitrated by the CCMA, but adjudicated by
the Labour Court?
• After conciliation, the CCMA, issued a certificate of outcome
declaring that the dispute concerning “an alleged unfair
discrimination based on religious grounds” remained

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unresolved and noted that the dispute could be referred to the

Labour Court for adjudication.
▪ What defences did the employer raise?
• The employer submitted that it is an inherent requirement of
the job to require a manager to do a stock take once a month
over a weekend, where a stock take is essential to its
operations.
▪ What test did the Labour Court use regarding operational
requirements as a fair inherent requirement of the job?
• The Labour Court invoked a proportionality enquiry to test
whether the requirement is inherent or inescapable in the
performance of the job. Considering the exceptional nature of
the defence, the Labour Court held that this requirement must
be strictly construed.
o A mere legitimate commercial rationale will not be
enough. In general, the requirement must be rationally
connected to the performance of the job.
o This means that the requirement should have been
adopted in a genuine and good faith belief that it was
necessary to the fulfilment of a legitimate work-related
purpose and must be reasonably necessary to the
accomplishment of that purpose.
▪ What is the maximum compensation Ms Faris could have claimed
and how much was awarded?
• The maximum compensation Ms Faris could have claimed
was 24 months’ remuneration. However, Ms Faris was
awarded compensation equivalent to 12 months’
remuneration in respect of her dismissal, calculated at the rate
of remuneration at the date of her dismissal.
Conduct justifying dismissal:
• Generally, a single act of misconduct does not warrant dismissal.
o Initially, a sanction short of dismissal ought to be imposed.
o Dismissal should be reserved for recurring or persistent acts of misconduct
or for a single act of serious misconduct.
• Examples of conduct justifying dismissal:
o Absenteeism and time-related offences
▪ Wilful absence from work is an act of serious misconduct and would
generally justify dismissal.
o Abusive language
▪ The use of abusive language directed at superiors, co-employees or
third parties may constitute a basis for dismissal.
o Alcohol and drug abuse
▪ Alcohol and drug abuse are forms of conduct that may assume the
nature of either incapacity or misconduct.
o Assault

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▪ When assault assumes a serious form, depending on the particular

circumstances of the incident, dismissal may be warranted even for
a first offence.
o Conflict of interest
▪ A conflict of interest in its extreme form occurs when an employee
acts in direct competition with the employer or derives secret profits
by virtue of the position the employee holds.
o Damage to property
▪ If an employee wilfully damages the property of the employer, this
will generally warrant dismissal.
o Desertion
▪ Desertion is distinguishable from absence without leave in that, in the
former instance, the employee’s conduct indicates or gives the
employer reason to believe that the employee does not intend to
return to work.
o Dishonesty
▪ Dishonesty manifests itself in a number of forms, including providing
false information, non-disclosure of information, pilfering, theft and
fraud.
▪ The fiduciary duty owed by an employee to the employer generally
renders any dishonest conduct a material breach of the employment
contract, justifying summary dismissal.
o Insubordination
▪ Insubordination includes the refusal on the part of an employee to
obey a reasonable instruction.
o Intimidation
▪ Intimidation constitutes threatening conduct that induces a
reasonable apprehension of harm in the person against whom it is
directed and most often occurs in the context of industrial action.
o Negligence
▪ The extent of the damage or loss caused by an employee’s
negligence is more often than not a determining factor in dealing with
the appropriateness of dismissal as a sanction where an employee
has been negligent.
o Off-duty conduct
▪ When an employee’s conduct outside the workplace impacts on the
employer’s business, the employer is entitled to hold the employee
accountable.
o Sexual harassment
▪ Sexual harassment covers a wide range of behaviours and
employers have a general duty to ensure that the working
environment is one where the dignity of employees is respected and
where all employees are aware of the obligation to refrain from
committing acts of sexual harassment.

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How is the substantive fairness of a dismissal for misconduct

determined?
• Any person required to determine whether a dismissal for misconduct is unfair
should consider the following:
1) Did the employee contravene a rule regulating conduct in or of relevance to
the workplace?
▪ Whether or not an employee contravened a rule is a matter of fact
and is for the employer to establish.
▪ This is done by conducting an investigation to determine the
existence of any misconduct.
2) Was the rule valid or reasonable?
▪ A rule that is unlawful, invalid or capricious cannot form the basis of
a fair dismissal.
▪ Therefore, a rule should be capable of justification by reference to
the nature and requirements of the employer’s business.
▪ Note: This requirement should not be confused with the
appropriateness of dismissal as a sanction.
3) Was the employee aware, or could the employee reasonable be expected
to have been aware, of the rule or standard?
▪ Generally, knowledge of a rule is a precondition to a finding of
misconduct.
▪ However, the employer is not required to establish actual subjective
knowledge of the rule by the employee.
▪ It is sufficient that the employee can reasonably be expected to have
knowledge of the rule.
▪ E.G. If the rule or standard is contained in a disciplinary code at the
workplace.
4) Did the employer apply the rule consistently?
▪ Generally, fairness requires that an employer applies the same
standards of conduct to all employees.
▪ Therefore, the employer should apply a penalty of dismissal
consistently with the way in which the penalty has been applied to
other employees in the past and as between two or more employees
who participate in the misconduct concerned.
▪ This requirement is no more than an element of the employer’s
obligation to act fairly.
5) Was dismissal an appropriate sanction for contravention of the rule?
▪ This is a difficult requirement to satisfy because an employer finding
an employee guilty of misconduct potentially has a number of
penalties that might be imposed, ranging in severity from warnings of
varying degrees of seriousness to dismissal.
▪ The appropriateness of dismissal as a sanction is dependent
primarily on the seriousness of the misconduct and its impact on the
employment relationship.
▪ Sidumo v Rustenberg Platinum Mines Ltd & Others (2007):
o Facts:

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▪ A security guard, Sidumo, was dismissed on the

grounds of misconduct after having been captured by a
video camera ignoring the mine’s search rules.
o CCMA:
▪ The commissioner held that dismissal was too harsh a
sanction in view of the security guard’s length of service
and his clean record, regardless of the fact that the
guard’s failure to search constituted misconduct.
o Labour Court:
▪ On appeal by the mine, the Labour Court held that there
was no basis for interfering with and setting aside the
award of the commissioner at the CCMA.
o Labour Appeal Court:
▪ On further appeal by the mine, the Labour Appeal Court
held that there was no basis for interfering with and
setting aside the award of the commissioner at the
CCMA.
o Supreme Court of Appeal:
▪ The Supreme Court of Appeal held that commissioners
must recognise that the discretion to impose a sanction
of dismissal for proven misconduct rests in the first
instance with employers and that they should only
intervene if the decision was manifestly or
demonstrably unfair.
▪ The court stated that: “The fact that the commissioner
may think that a different sanction would also be fair, or
fairer, or even more than fair, does not justify setting
aside the employer’s sanction.”
▪ Therefore, the Supreme Court of Appeal adopted the
‘reasonable employer’ test.
• This approach permits interference only if the
employer’s decision falls outside a band of
decisions to which a reasonable employer might
come on the available material.
o Constitutional Court:
▪ The question before the Constitutional Court was
whether commissioners should:
• Defer to employers on the question of sanction
and interfere with the sanction imposed by an
employer only in limited circumstances?; or
o ‘Reasonable employer’ test
• Be entitled to take a broader view of what
constitutes an appropriate sanction in each
case?
o ‘Reasonable commissioner’ test

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▪ This approach requires a

commissioner to determine the
fairness of the sanction imposed
by the employer without deference
to the employer and by reference
to what is fair in the circumstances
rather than what a reasonable
employer might think.
▪ The Constitutional Court rejected the ‘reasonable
employer’ test invoked by the Supreme Court of Appeal
and held that the Constitution and the LRA seek to
redress the power imbalance between employees and
employers.
▪ Therefore, commissioners are required to decide
whether the dismissal that is the subject of the dispute
before them was fair, not whether a reasonable
employer might think it was.
▪ The test that a commissioner must employer when
considering the fairness of a dismissal dispute requires
that the commissioner take into account the totality of
circumstances, including:
• The importance of the rule breached by the
employee;
• The reason that the employer imposed the
sanction of dismissal;
• The basis of the employee’s challenge to the
dismissal;
• The harm caused by the employee’s conduct;
• Whether additional training and instruction may
result in the employee not repeating the
misconduct;
• The effect of dismissal on the employee; and
• The long service record of the employee.
Identify the requirements for a disciplinary hearing to be fair:
• The LRA requires that a dismissal be affected in accordance with a fair procedure.
o The LRA does not prescribe the procedure to be followed, but Item 4 of the
Code of Good Practice provides useful guidelines.
▪ The first element of the guideline on procedural fairness is an
investigation to determine whether there are grounds for dismissal,
which need not be a formal enquiry.
▪ Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006):
• The Labour Court considered the nature of the word
‘investigation’ and held that the Code clearly envisages
something less formal than a court-like disciplinary enquiry.

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o “This conception of the right to a hearing prior to

dismissal…is reflected in the Code. When the Code
refers to an opportunity that must be given by the
employer to the employee to state a case in response
to any allegations made against that employee, which
need not be a formal enquiry, it means no more than
that there should be dialogue and an opportunity for
reflection before any decision is taken to dismiss.”
• Therefore, at minimum, what is required for a fair disciplinary
hearing is:
o An investigation into the factual circumstances of the
case;
o The formulation of allegations of misconduct against
the employee;
o Notice of those allegations to the employee; and
o An opportunity to state a case in response to the
allegations.
• Furthermore, the employee ought to be entitled to a
reasonable opportunity to respond to the allegations against
them, with the assistance of a trade union representative or a
fellow employee, if required.
• After the enquiry, the employer is obliged to communicate the
decision made and should furnish the employee with the
decision in writing.
▪ In addition to the requirement of an investigation to determine any
grounds for dismissal, the Code provides that:
• The employee should be given a reasonable time to prepare
a response to the employer’s allegations and should have the
assistance of a trade union representative or a fellow
employee;
• After the enquiry, the employer should give the employee the
reason for any decision to dismiss and remind the employee
of the right to refer any disputed dismissal to the appropriate
statutory dispute resolution agency; and
• If the employer cannot reasonably be expected to comply with
the guidelines, they may dispense with them in exceptional
circumstances, which include:
o A ‘crisis-zone’ situation where there is a danger to life
and property that justifies an employer dispensing with
a hearing;
o The failure or refusal by an employee, without good
cause, to attend a hearing;
o The situation where an employee has deserted and
cannot be traced; and

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o Where certain small enterprises are involved (one-

person establishments) where the requirements of an
independent and unbiased assessment are impossible.
Discuss incompetence and incapacity as possible grounds for a fair
dismissal:
• There is no obligation on an employer to keep an employee on indefinitely because
payment is made for services rendered.
• The LRA recognises incapacity as a legitimate ground for dismissal.
• The Code of Good Practice recognises two forms of incapacity:
1) Poor work performance; and
▪ Poor work performance contemplates the situation where an
employee cannot meet the required performance standard, as
opposed to an employee who won’t or ‘couldn’t be bothered’ to meet
the required performance standard.
▪ The employer is generally obliged to assess the source and extent of
the problem, attempt to redress it and investigate the existence of
alternative measures prior to dismissing the employee.
▪ The Code provides that an employee should not be dismissed for
poor work performance unless:
o The employer has given the employee appropriate evaluation,
instruction, training, guidance and counselling; and
o The employee continues to perform unsatisfactorily after a
reasonable period of time for improvement has been given.
▪ According to Item 9 of the Code, an arbitrator is enjoined to consider
the following criteria when deciding whether a dismissal for poor work
performance is unfair:
o Whether or not the employee failed to meet a performance
standard; and
o If the employee did not meet a required performance
standard, whether:
▪ The employee was aware, or could reasonably be
expected to be aware of the required performance
standard;
▪ The employee was given a fair opportunity to meet the
required performance standard; and
▪ The dismissal was an appropriate sanction for not
meeting the required performance standard.
▪ The procedure in terms of the Code:
o The employer should conduct an investigation to establish the
reasons for the unsatisfactory performance of the employee;
▪ This investigation is known as an ‘incapacity inquiry’.
o The employer must give appropriate evaluation, instruction,
training, guidance and counselling; and
▪ This entails not only an appraisal of the employee’s
performance, but a discussion with the employee of
any criticisms that the employee may have.

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o The employer must give the employee a reasonable time to

improve.
▪ This implies that the employee should be warned of any
shortcomings in work performance.
▪ Note: An employee has the right to be heard, in accordance with the
maxim audi et alteram partem, and to be assisted by a trade union
representative or a fellow employee.
2) Ill health or injury.
▪ Not limited to physical illness or injury and extends to an employee’s
mental condition.
▪ The Code of Good Practice establishes guidelines on dismissals for
incapacity arising out of ill health and injury:
o An employer must establish if the employee’s ill health or
injury is of a temporary or permanent nature;
o In the case of temporary ill health or injury, if the employee is
likely to be absent from work for an unreasonably long time,
the employer should investigate all alternatives short of
dismissal;
o The employer should always seek to secure alternative
employment or ways of accommodating the employee’s
disability in the case of permanent ill health or injury;
o The employee should be afforded the opportunity to state a
case in response to an investigation into their medical
incapacity and to be assisted by a trade union representative
or a fellow employee;
o If the reason for medical incapacity is alcohol or drug related,
the employee should receive counselling and rehabilitation;
and
o If the employee is injured at work or incapacitated due to work-
related illness, employers ought to give particular
consideration thereto.
o Incapacity can be distinguished from misconduct because some degree of ‘fault’ is
required on the part of the employee, for misconduct to constitute a ground for
dismissal.
Define ‘operational requirements’ and examine the procedure that the
employer must follow when a dismissal due to operational requirements
is considered:
• Dismissals on account of the employer’s operational requirements are called ‘no
fault’ dismissals because they are based on the employer’s constraints rather than
any act or omission on the part of the employee.
o Retrenchment is a dismissal based on the employer’s operational
requirements.
• The substantive and procedural requirements to be followed by employers
intending to dismiss on the basis of its operational requirements are contained in
S 189 and S 189A of the LRA:

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o S 189 deals with retrenchments of small numbers of employees, where the

employer has less than 50 employees in their employ; and
▪ We are only dealing with ‘regular’ or smaller-scale retrenchments.
o S 189A deals with large-scale retrenchments.
• The meaning of ‘operational requirements’ is defined in S 213 of the LRA:
o “Requirements based on the economic, technological, structural or similar
needs of an employer.”
▪ Economic reasons are those relating to the financial management of
an enterprise;
▪ Technological reasons refer to new technology that affects work
relationships; and
• During the Fourth Industrial Revolution, machines will be
taking over the jobs of many employees.
▪ Structural reasons relate to the redundancy of posts consequent on
the restructuring of the employer’s enterprise.
o This could be for a number of reasons such as, that the employers’ debts
now exceed its income or because employee positions have become
redundant as a result of new technology or due to a merger with another
business.
o However, these are not the only categories because the broad definition of
‘operational requirements’ has permitted the courts to include the following:
▪ Incompatibility;
▪ A refusal to accept changed conditions of employment consequent
upon the need to reorganise work; and
▪ Dismissals at the instruction of a third party.
• The selection criteria for retrenchment on the basis of an employer’s operational
requirements must be fair and objective.
o Therefore, an employer may not ‘cherry-pick’ selected employees for
retrenchment.
o The most commonly utilised objective, selection criterion is ‘LIFO’ or ‘Last
In, First Out’.
▪ The rationale for LIFO is that it is more equitable to choose shorter
serving employees for retrenchment than their longer serving
colleagues because the latter generally deserve some recognition for
their past loyalty.
▪ However, the application of LIFO is generally applied subject to a
right to retain special skills, especially where these are necessary for
the continued operation of the employer’s business.
o The application of LIFO presupposes a pool from which the employer will
select employees for dismissal.
o However, it is not only those employees who are actually doing the jobs or
occupying the posts that are identified as redundant who necessarily form
part of the group of employees selected for retrenchment. An employer may
be expected to broaden the selection pool to include other jobs that might
have been performed by the employees whose own jobs have become
redundant.

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▪ This principle is known as ‘bumping’ and it occurs in two forms:

• Horizontal bumping
o When an employee whose own position is redundant
displaces an employee with shorter service in a similar
job category.
o E.G. Employee A is bumped into the position of
Employee B – a role of similar status and pay etc.
• Vertical bumping
o When an employee with longer service displaces a
junior employee with shorter service.
o E.G. Employee A, a senior staff member, is bumped
into the position of Employee B who occupies a less
favourable position.
▪ Note: Employers are not always required to apply the bumping
principle when selecting employees for retrenchment because it is a
very disruptive process, although the employer ought to have some
rational justification for refusing to apply it.
• Procedural fairness regarding dismissals on the basis of an employer’s operational
requirements requires:
o Notice of contemplation of dismissal
▪ Consultation is initiated by the employer issuing a written notice in
terms of S 189(3), inviting the other consulting parties to consult with
it and the disclosure, in writing, of the following:
• The reasons for the proposed dismissals;
• The alternatives considered by the employer before proposing
the dismissals and the reasons for rejecting each of those
alternatives;
• The number of employees likely to be affected and the job
categories in which they are employed;
• The processes or method for selecting which employees are
to be dismissed;
• The time when, or the period during which, the dismissals are
likely to take effect;
• The severance pay proposed;
• Any assistance that the employer proposes to offer to those
employees likely to be dismissed;
• The possibility of future re-employment of those employees
who are to be dismissed;
• The number of employees employed by the employer; and
• The number of employees that the employer has retrenched
in the preceding 12 months.
▪ The requirement of disclosure of information (S 189(3)) is
fundamental to the consultation process because the role of the
consulting parties in joint consensus-seeking would be meaningless
if they were unable to participate on an informed basis.

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• However, the right to disclosure of information is not absolute

and an employer is only required to disclose information that
is relevant and is specifically not required to disclose
information that:
o Is legally privileged;
o The employer cannot disclose without contravening a
prohibition imposed on the employer by any law or
order of any court;
o Is confidential and, if disclosed, may cause substantial
harm to an employee or the employer; and
o Is private, personal information relating to an
employee, unless that employee consents to the
disclosure of the information.
▪ An employer is required to consult when that employer contemplates
dismissing one or more employees for reasons based on the
employer’s operational requirements.
▪ Therefore, before a final decision is made, an employer must initiate
the consultation process by issuing a written notice.
• As soon as an employer contemplates or foresees the
possibility of retrenchments, consultations with relevant
parties must begin.
o Identifying the appropriate consulting party
▪ If an employer contemplates dismissing one or more employees for
reasons based on its operational requirements, the employer is
obliged to consult with parties whose identity is determined in
accordance with a strict hierarchy established by S 189(1):
1) Any person with whom the employer is obliged to consult in
terms of a collective agreement;
2) If there is no collective agreement and the employees likely to
be affected by the proposed dismissal are employed in a
workplace in respect of which there is a workplace forum, the
forum, in conjunction with any registered trade union, have
equal claim to be consulted;
3) In the absence of a workplace forum, a registered trade union
whose members are likely to be affected by the proposed
dismissals must be consulted; and
4) If there is no registered trade union, those employees likely to
be affected by the proposed dismissals, or their
representatives nominated for that purpose, must be
consulted.
o This hierarchy of representatives is dependent on
whether there is a majority trade union at the
workplace, the presence of more than one trade union
at the workplace or the absence of trade unions at the
workplace.

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▪ Association of Mineworkers and Construction Union (AMCU) and

Others v Royal Bafokeng Platinum Ltd and Others (2018):
• Facts:
o The first respondent operates a platinum mine. The
trade unions involved in representing mine employees
are AMCU, NUM and UASA. The employer recognised
NUM and UASA for bargaining purposes and extended
organisational rights to them. AMCU was not
recognised for bargaining purposes, neither was
organisational rights extended to it.
o On 30 September 2015, the employees attempted to
report for duty at the mine, however they were issued
with notices of retrenchment dated 18 September
2015. In the notices, it was stated that the employees
would be retrenched with effect from 31 October 2015.
o Neither the employees nor AMCU, who represented a
majority of mine employees, were issued with S 189(3)
notices. It is common cause that AMCU was not
consulted before the decision to retrench its members
was made. NUM and AUSA were, however, consulted.
o AMCU referred an alleged unfair dismissal dispute to
the CCMA for conciliation.
• CCMA:
o The employer raised a point in limine to the effect that
there is an extant collective agreement between the
employer, NUM and UASA which entitled the employer
to exclude AMCU from the consultation process.
o The commissioner issued a jurisdictional ruling
wherein he found that the CCMA had no jurisdiction to
conciliate this matter.
• Labour Court:
o AMCU and the employees approached the Labour
Court with an application in terms of S 189A of the
LRA.
o The employer, in its answering affidavit, averred that it
had entered into a collective agreement with NUM and
UASA, in terms of which the parties agreed that the
employer would only consult with NUM and UASA in
respect of dismissals for operational requirements.
o AMCU sought an order in the Labour Court declaring S
189(1)(a) to (c) and S 23(1)(d) of the LRA
unconstitutional.
▪ “The applicants (appellants) approached this
Court for an order, inter alia, declaring SS
189(a) - (c) of the Labour Relations Act (LRA)
unconstitutional in so far as they have the

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effect that where an employer consults with a

trade union with which the employer is
required to consult in terms of a collective
agreement, that employer has no obligation
to consult with any other trade union whose
members are likely to be affected by the
proposed dismissals. Construed in this
manner, it violates the rights (and freedoms)
set out in the Constitution namely, the rule of
law (S 1), the right to equality (S 9(1)), dignity
(S 10), freedom of association (S 18) fair
labour practice (S 23), access to information
(S 32) and access to courts (S 34).”
o Essentially, AMCU and the employees took issue with
the fact that based on the collective agreement
between the mine, NUM and UASA, they were not
consulted prior to their dismissals and were precluded
from contributing to the consultation process. In being
disenfranchised in this manner, the individual
appellants remain oblivious to the content of the
consultation process.
o Therefore, the appellants contended that their
exclusion from the consultation process is not in
keeping with the right to fair labour practices, which
includes the right not to be unfairly dismissed. They
submitted that the effect of the mine’s action was to
discriminate unfairly between employees based on
their trade union affiliation and to disenfranchise the
individual appellants who elected to be associated with
AMCU.
o The Labour Court dismissed AMCU’s application
declaring various sections of the LRA unconstitutional.
▪ ‘…S 23(1)(d) of the Act is not
unconstitutional; there is no basis to read in
an exclusion into S 23(1)(d) precluding its
application to collective agreements that
regulate dismissals based on operational
requirements; S 189 is not inconsistent with
the Constitution because if an employer
consults a party in terms of a collective
agreement, there is no obligation to consult
another party in terms of the remaining
subsections to S 189 of the Act; S 189 creates
a hierarchy of consulting parties; the
elevation to the status of consulting party is
strictly speaking not dependent on the

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principle of majoritarianism, but rather on

such party acquiring the status of consulting
party by way of a collective agreement; there
is no basis to excise or interpret SS 189(1)(a)
- (c) in order to declare that where an
employer consults with a trade union that the
employer is required to consult, the employer
must also consult with any other trade union
members who are likely to be affected by the
proposed dismissals; and the impugned
sections do not violate any of the
constitutional rights alleged by AMCU.”
• Labour Appeal Court:
o The Labour Appeal Court dismissed AMCU’s
application and concurred with Labour Court’s findings
on the constitutionality of the sections raised by AMCU.
o Consultation process
▪ The consultation process is not identical to a negotiation process.
▪ The parties to a consultation process must attempt to reach
consensus on the appropriate measures in respect of the following:
• To avoid retrenchment;
• To minimise the number of retrenchments;
• To change the timing of the retrenchments;
• To mitigate the adverse effects of the retrenchments;
• The method for selecting the employees to be retrenched; and
• The severance pay that is to be paid to retrenched employees.
▪ The employer is required to consider and respond to the
representations in writing and, if it does not agree with the, to state
its reasons for disagreement.
▪ Obtaining meaningful joint consensus implies an obligation to act in
good faith to seek common ground and honestly explore the
prospects of agreement.
o South African Commercial, Catering and Allied Workers Union (SACCAWU)
and Others v Woolworths (Pty) Limited (2019):
▪ Facts:
• Woolworths used to employ all its workers on a full-time basis
but decided that in future it would only employ workers on a
flexible working hour basis. These workers (flexi-timers) would
work 40 hours per week.
• By 2012, Woolworths’ workforce consisted of 16 400 flexi-
timers and 590 full-timers. Full-timers earned superior wage
rates and enjoyed better benefits. The remuneration package
of some full-timers exceeded the wages and benefits
applicable to flexi-timers by 50%. Full-timers and flexi-timers
did the same work.

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• Woolworths decided to covert the full-timers to flexi-timers on

the terms and conditions of employment applicable to flexi-
timers. In order to do this, Woolworths first invited full-timers
to voluntarily become flexi-timers during a period between
August and September 2012. It did not participate SACCAWU
to participate in this phase. All the full-timers save for 177
employees opted for early retirement, voluntary severance or
agreed to become flexi-timers. Woolworths then progressed
to the second phase in accordance with S 189A of the LRA,
during which 85 of the 177 full-timers accepted one of the
voluntary options.
• As Woolworths employed more employees than the threshold
specified in S 189A of the LRA, it was obliged to follow the
process specified by the section to affect the retrenchments.
o Woolworths gave the prescribed notice of termination
of employment as regards the remaining 177 full-
timers. It also engaged in a consultation process,
including one facilitated by the CCMA.
o SACCAWU represented some of its members who
were full-timers.
▪ Consultation process:
• During the course of consultation, 85 of the full-timers
accepted the voluntary option of becoming flexi-timers;
leaving 92 full-timers who opposed the conversion and did not
accept the voluntary option.
• SACCAWU and 44 of its members appreciated the need to
work flexi-time and accepted that full-timers should be
converted to flexi-timers.
• SACCAWU initially suggested that the full-timers retain their
existing wages and benefits and proposed that although these
employees would work 40 hours per week, they would be paid
for working 45 hours at their full-time wage rates.
• However, towards the end of the consultation process,
SACCAWU varied its stance and proposed that the workers
would work flexi-time for 40 hours and be paid only for those
hours but at their full-time wage rates (which meant an 11%
reduction in wages for full-timers who became flexi-timers).
• Woolworths did not understand this to be a different proposal
and rejected it.
• Woolworths gave notice to terminate the contracts of
employment.
o It retrenched 92 full-timers.
• On 3 December 2012, SACCAWU, on behalf of 44 of the full-
timers, launched an application in terms of S 189A of the LRA,
in the Labour Court.

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• On 18 December 2012, SACCAWU then referred a dispute

whether there was a fair reason for the dismissal to the Labour
Court for adjudication.
• SACCAWU applied for the consolidation of its unfair dismissal
claim and its application seeking redress for the procedural
unfairness of the dismissal. This application was granted.
▪ Labour Court:
• The Labour Court upheld SACCAWU’s challenges that the
dismissals were both substantively and procedurally unfair.
• Woolworths was ordered to reinstate the 44 dismissed full-
timers retrospectively from the date of their dismissal.
▪ Labour Appeal Court:
• The Labour Appeal Court upheld only part of the Labour
Court’s conclusions and orders.
• The Labour Appeal Court confirmed the Labour Court’s
conclusion that the dismissals were substantively unfair but
changed the remedy from reinstatement to an award of
compensation equal to 12 months’ remuneration.
• In addition, the Labour Appeal Court set aside the Labour
Court’s relief in relation to the claim based on procedural
unfairness.
▪ Constitutional Court:
• In the Constitutional Court, SACCAWU sought leave to appeal
against parts of the Labour Appeal Court’s decision,
specifically the substitution the 12 months’ remuneration
compensation award for reinstatement, and the dismissal of
the claim for relief based on procedural unfairness.
• The issues for determination before the Constitutional Court
were:
o The substantive unfairness of the dismissals;
o If the dismissals were not substantively unfair, the
procedural unfairness of the dismissals; and
o The appropriate remedy in the case that the dismissals
are found to be unfair.
• On the issue of substantive unfairness, the Constitutional
Court confirmed that the dismissal of the individual applicants
was substantively unfair because Woolworths had failed to
prove that the retrenchments were operationally justifiable on
rational grounds or that it properly considered alternatives to
retrenchments.
• On the issue of procedural unfairness, the Constitutional Court
declined to comment because the issue of procedural fairness
only arises in the event that the dismissals are found to be
substantively fair.
• The Constitutional Court held that the appropriate remedy
would be to revive the contracts of employment which existed

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at the time of dismissal, so that the parties may resume the

consultation process which ended when the dismissal took
place and SACCAWU may then revive their proposal or make
another proposal aimed at the parties reaching an agreement
on the issue of them working flexi-time.
• Moreover, the Constitutional Court confirmed the order of the
Labour Court in ordering reinstatement with retrospective
effect to the date of dismissal.
Determining the appropriate legal regime
S 189 S 189A
Dismissals based on operational Dismissals based on operational
requirements. requirements by employers with more
than 50 employees.
Does not confer a right to strike to Confers a right to strike in certain
influence the decision to retrench. circumstances, to influence the decision
to retrench.
Consultation is required. Consultation is required.

Calculate the severance pay an employee who was dismissed for

operational requirements will be entitled to:
• Employees are entitled to severance pay, only in respect of retrenchments.
o Therefore, an employee is not entitled to severance pay where dismissal is
affected on the grounds of misconduct or incapacity.
• Note: Severance pay is not regulated by the LRA but is regulated by the BCEA.
• S 41 of the BCEA contains the statutory formula for the payment of severance pay.
o An employer is required to pay each retrenched employee a minimum of
one week’s remuneration for every completed and continuous year of
service with that employer.
o ‘Remuneration’ is widely interpreted, but excludes allowances paid for the
purposes of enabling an employee to work and discretionary payments not
related to hours of work or work performance.
o Note: If there is a break of less than one year between the periods of
employment with the same employer, previous employment must be taken
into account when calculating severance pay.
▪ BUT: The period of absence is not brought into account.
o S 41(4) provides that an employee who unreasonably refuses to accept the
employer’s offer of alternative employment with that employer or another
employer is not entitled to severance pay.
▪ This section provides that where an employer is capable of arranging
alternative employment within either its own ranks or those of another
employer, it is relieved of the obligation to pay severance pay if the
employee unreasonably refuses to accept that offer.
▪ The unreasonableness of the refusal rather than the reasonableness
of the offer is relevant when considering whether an employee ought
to be denied severance pay and alternative employment.

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o Any dispute about entitlement to severance pay may be referred to a

bargaining council or to the CCMA, who must attempt to resolve the dispute
by conciliation.
o If conciliation fails, the dispute may be referred to arbitration.
o If the Labour Court is adjudicating a dispute about a dismissal for
operational requirements, it is entitled to inquire into and determine the
amount of any severance pay to which a dismissed employee may be
entitled and make an order compelling the employer to pay that amount.
Summary diagram

Misconduct
Poor work
performance
Fair reasons Incapacity
Unfair
Ill health/injury
dismissal
Operational
Fair procedure
requirements

Study Unit 7: Class question

Question 1: Employer A is experiencing financial hardship due to COVID-19. Employer
A has 100 employees in their employ. Employee X reported to work five minutes late
and stole toilet paper from the storage room. Employee Y has been making many
mistakes due to a lack of skills and competence. Employer A cannot afford to hire
Employee Z anymore because he earns much more than any of the other employees
and Employee B can also perform the same work.
a. What are the three main grounds that the South African law recognises for
dismissal and indicate under which of these grounds Employer A could
consider terminating Employees X, Y & Z’s services?
b. Taking into account the statutory definition of ‘dismissal’, name five types of
situations that could be classified as dismissal.
c. Who has the onus of proving that it was a ‘dismissal’ and who must prove that
it was a ‘fair’ dismissal?
d. What are the two main requirements for any fair dismissal?
(15)
Question 2: Employer B conducts interviews with 3 candidates on 1 December and
offers Z a contract to commence on 2 January. On 31 December, Employer B informs
Z that they don’t have a job for Z on 2 January due to financial hardship caused by
COVID-19. Does this constitute ‘dismissal’ and on what ground?
(4)

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Question 3: Employer C has 50 employees. 10 of the 50 employees have been

appointed on one year fixed-term contracts for three years in a row. He also told them
that they are doing excellent work and that he would not mind if they worked with
Employer C until 2030. Due to the drop in value of the Rand, Employer C is making
huge financial losses. Employer C informs 5 of the fixed-term employees that he will
not be giving them another one year fixed-term contract on 2 January. The 5
employees feel that this constitutes an unfair dismissal. Employer C says that this is
not a dismissal because he will merely not be offering them another fixed-term
contract. Is this a ‘dismissal’ and what must the employees prove? What are the
relevant factors to reasonableness?
(10)
Question 4: Employer Boss has a problem with two employees. Employee A is not
meeting his targets and is always unfriendly. Employee C has done nothing wrong,
but Employer Boss does not like her and cannot handle her. Employer Boss demotes
Employee C to a lower post level, and he terrorises her by transferring her from
Pretoria to Uppington, although her children are at school in Pretoria. Employer Boss
called Employee A in and gave him a warning. Both Employees A and C resign due
to the fact that they cannot take it anymore. Do Employees A and C have cases against
Employer Boss, on what ground and what factors need to be taken into account to
determine whether the would succeed?
(6)
Question 5: Name five other ways in which a contract of employment can come to an
end in the absence of a dismissal.
Question 6: Employer Boss works in the clothing manufacturing industry and has a
problem with Employee Z. Employer Boss gives Employee Z one months’ written
notice on 1 February. Employer Boss pays Employee Z all outstanding money on 15
February. Employee Z wants to refer an unfair dismissal dispute to the relevant
clothing bargaining council.
a. On or before which date should the dispute be referred and why do you say so?
If the dispute cannot be resolved during conciliation, where should it be referred
to be finalised?
(5)
b. Assume that Employer Boss only has 3 employees and only decided to retrench
Employee Z due to financial reasons. Before when should Employee Z refer the
dispute and which tribunal, or court should finalise the dispute if it could not be
resolved during conciliation? Who bears the onus in unfair dismissal cases?
(6)
c. Assume that it was an automatic unfair dismissal, could the dispute be
arbitrated by the bargaining council?
(3)
d. What remedies could Employee Z claim if it was an automatic unfair dismissal?
What is the primary remedy and under what circumstances would reinstatement
not be awarded?

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(6)

Question 7: Employer A has a shop and the business is open 7 days a week between
7am and 11pm. Employee B is pregnant, Employee C is 66 years old (whilst Employer
A’s retirement age is 65) and Employee D belongs to a church where congregations
are held on Sundays and according to her religion, she may not work on Sundays.
Employer A decides to terminate the services of Employees B, C and D. Advise all
three former employees about their prospects of success by referring to the legal
grounds on which they should base their claims, the dispute resolution process they
should follow, as well as the remedies that they could possibly rely on. Also explain to
Employer A what possible defence he could rely on in relation to Employees C and D
and explain on whom the onus rests in the last-mentioned cases. Refer to relevant
case law in your answer.
(20)
Question 8: Employee A has mental problems and suffers from depression. Employer
B knows about the problem but dismisses Employee A on the grounds of misconduct.
Is it possible to receive a remedy from the Labour Court on the grounds of the LRA
(for automatic unfair dismissal) and the EEA (for unfair discrimination)?
(5)
Question 9: Employer S has 10 employees in her construction and painting business.
S has a problem with M, N and O. M was negligent and has damaged S’s vehicle. He
has also done some work for the competition without informing S. On the other hand,
N injured her back whilst on holiday. Since her return she has missed a couple of days
of work and it is not clear that N will be in a position to continue working as a painter.
S knows that O is depressed, and she wants to get rid of O. S wants to terminate M
and N’s contracts and approaches you for advice.
a. Advise S regarding the appropriate reason and procedure to be followed in
each instance (both M and N); and whether in M’s instance, it is a strict court-
like procedure or not.
(12)
b. Explain what principles the CCMA would take into account to establish
whether there is a fair reason for dismissal of M and also explain which test
(subjective, objective and viewed from the employer or employee’s
perspective) the CCMA should adopt.
(10)
c. With reference to case law, discuss the termination of a contract of
employment based on depression
(5)
th
Question 10: Employer XYZ had 200 workers. Due to the 4 Industrial Revolution and
the implementation of new technology XYZ is considering terminating 20 employee’s
services. There are two trade unions at the workplace. Trade union K has 110
members and trade union R has 40 members. Explain the procedure XYZ should
follow; with which parties the employer should speak (also trade union R?); when and
how the employees (or trade unions) should be notified; what they can receive for

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years of service; and whether the courts would be willing to award reinstatement even
though XYZ do not need their services anymore.
(18)

Study Unit 8: Freedom of Association and Organisational Rights

The protection of the right to freedom of association:
• The point of entry into collective labour law is through the right to freedom of
association.
• The right to freedom of association is internationally recognised and protected and
has historically been linked to other democratic rights.
• The preamble to the ILO’s Constitution stipulates that the principle of freedom of
association is among the means of improving the conditions of workers and
ensuring peace.
• The ILO Convention No. 87 (Freedom of Association and the Right to Organise) is
the principal source of international obligations in relation to the right to freedom of
association in the world of work.
• Moreover, S 18 of the Constitution of the Republic of South Africa guarantees the
right to freedom of association, both generally and in relation to employment.
• The LRA protects the right to freedom of association and the right to organise in
two ways:
o Firstly, Chapter II of the LRA extends specific rights and protections to
workers and to employers; and
o Secondly, Chapter III extends organisational rights to registered trade
unions that meet representativeness thresholds.
• The right to freedom of association is the cornerstone of collective bargaining and
is a precondition for the realisation of a number of other rights.
• Chapter II of the LRA provides that employees, employers, trade unions and
employers’ organisations have the right to freedom of association:
o The first part of the Chapter deals with employee rights, defined for this
purpose to include job seekers:
▪ Every employee has the right to form a trade union, to join a union,
to participate in the lawful activities of the union, as well as to be a
union officer-bearer or official.
▪ Employees’ and work seekers’ rights of freedom of association are
protected against any interference by any employer, union or any
other party. Employees and work seekers are also protected against
discrimination based on their exercising of any such right.
▪ Victimisation is prohibited and includes:
• Protection against discrimination based on the exercising of
any right in terms of the LRA;
• Protection against any demand that an employee or person
seeking employment:
o May not be a member of a trade union or workplace
forum;
o May not become a member of a trade union or
workplace forum; or

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o Must relinquish membership of a trade union or

workplace forum.
• Protection against any interference with the exercise of rights
or from participating in any proceedings in terms of the LRA;
• Protection against any prejudicial treatment because of past,
present or anticipated:
o Membership of a union or workplace forum;
o Participation in the forming of a union, federation or
workplace forum;
o Participation in the lawful activities of these bodies;
o Failure or refusal to do something an employer may not
lawfully permit or require an employee to do;
o Disclosure of information the employee is lawfully
entitled or required to give to another person;
o Exercise of any right conferred by the LRA; and
o Participation in any proceedings in terms of the LRA.
• The offering of any advantage or the promise to advantage in
exchange for not exercising any right in terms of the LRA is
prohibited; and
• Any provision in a contract contradicting or limiting any
provision of S 4 of the LRA, whether directly or indirectly, is
invalid, unless permitted by the LRA.
▪ IMATU & Others v Rustenburg Transitional Local Council (1999):
• The Labour Court held that the LRA, as well as the
Constitution, grants an unrestricted right to freedom of
association.
• Therefore, the right to freedom of association extends to
senior managerial employees, who may not be prevented
from being involved in union activities or serving in union
executive positions.
o The onus rests on the employee to ensure that there is
no conflict of interest.
o E.G. A senior managerial employee cannot sit in
meetings to decide what the annual wage increase will
be and also negotiate, on behalf of the trade union, for
higher wages.
• However, the exercise of the right to freedom of association
by senior executives is not unlimited:
o “The employee must still do the work for which he is
engaged and observe the secondary duties by which
he is bound under the contract. If he does not, he can
be disciplined for misconduct or laid off for
incapacity…The senior employee who becomes a
union leader must, in consequence, tread carefully,
especially in his handling of confidential information. It
is not enough simply to keep the information secret; he

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must recuse himself from every discussion within the

union to which such information might be relevant
either directly or indirectly lest he convey, merely by his
conduct or simply by silence, facts that the employer
would prefer the union not to know. He can, I believe,
participate in discussions on strategy to which
information given to him in confidence is irrelevant,
since this is implicit in his right to participate in trade
union activities, but he must guard himself even from
exercising a judgment on the basis of such information.
The delicacy of discretion that this entails makes his
position an unenviable one, but the Act gives him the
right to enter this minefield if he wishes.”
o Chapter II of the LRA affords employers rights of freedom of association,
including:
▪ The right to form an employers’ organisation, to join it, to participate
in its lawful activities, to elect any office-bearers or officials and,
where a natural person, to act as office-bearer or official or, where a
juristic person, to appoint a representative for election as such; and
• Employers’ organisations exist within certain industries
(building and motor industries) and gather before the
commencement of annual negotiations with trade unions.
▪ Protection against victimisation, which protection is similar to that
afforded to employees and job seekers.
o Contractual provisions contradicting or limiting these provisions are invalid.
• Chapter III establishes various organisational rights for the benefit of trade unions,
which rights are capable of enforcement against the employer:
o Trade union access to the workplace (S 12);
o Deduction of trade union subscriptions, which are also called ‘check-off’
facilities (S 13);
o The election and functions of trade union representatives (‘shop stewards’)
(S 14);
o Leave for trade union activities (S 15); and
o Disclosure of information (S 16).
Exceptions to the right to freedom of association in terms of the LRA:
• Although the following exceptions appear to flout the right to freedom of
association, the Constitution and the LRA provide for such trade union security
arrangements.
• There are two statutory exceptions to the right to freedom of association:
o Closed shop agreements; and
o Agency shop agreements.
▪ Note: Only majority trade unions have the right to conclude such
agreements.
• Closed shop agreements:
o A collective agreement concluded by a majority union and employer or
employers’ organisation, which requires all employees covered by that
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agreement to become members of the trade union i.e. Collective agreement

may oblige all employees to be members of the majority trade union.
o It is not unfair to dismiss an employee who refuses to join a trade union party
to the closed shop agreement, or who refused membership of that trade
union or who is expelled from such trade union.
o Therefore, a closed shop agreement compels employees to become
members of the union.
o Requirements for the conclusion of closed shop agreements:
▪ Only a representative trade union can conclude such an agreement;
▪ A ballot must be held of the employees to be covered by the
agreement;
▪ Two thirds of the employees who vote must vote in favour of the
closed shop agreement;
▪ The agreement must be a post-entry closed shop agreement i.e. The
agreement may not require membership of the trade union before
employment commences; and
▪ The agreement must provide that no membership subscription or
levy deducted may be used for inappropriate purposes.
• Agency shop agreements:
o A collective agreement concluded by a majority union and employer or
employers’ organisation, which requires the contribution by non-members
of an ‘agency fee’, to that union, as a condition of employment i.e.
Deductions for majority union fees from all employees, both members and
non-members.
o Requirements for the conclusion of agency shop agreements:
▪ Concluded between a union, or more than one union, with majority
support and an employer (at workplace level) or employers’
organisation (at sectoral level);
▪ In terms of which an amount is subtracted from the wages of non-
members who are eligible for union membership;
▪ This fee may not be higher than the union’s membership fees; and
▪ This fee should be paid into a fund controlled by the majority union(s).
o Note: Members of minority unions can consequently be forced to pay a
double fee i.e. Membership fees to the minority union, as well as the ‘agency
fee’ which is automatically deducted from their wages.
o Therefore, although agency shop agreements do not compel employees to
be or become members of the trade union that is the beneficiary of the
agreement, it could also amount to an infringement upon the right to
freedom of association because improper pressure is placed upon
employees with regard to their choice of union membership.
• Therefore, closed shop and agency shop agreements are described as exceptions
to freedom of association in that the right to associate (positive right) and the right
not to associate (negative right) are not inseparable elements of the same concept.
• Union security arrangements are concluded for two main reasons:
o Unions and their members argue that so-called ‘free-riders’ should pay their
own way; and

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o One of the LRA’s primary objectives is to promote a framework within which

employees and their trade unions can collectively bargain in an orderly
fashion, preferably on a sectoral level.
What tests need to be applied, and what legal processes need to be
followed to determine if a trade union is ‘sufficiently representative’?
• For unions to qualify for statutory organisational rights, they must be registered and
‘sufficiently representative’ in terms of the LRA.
• The LRA distinguishes between:
o Unions that are merely ‘sufficiently representative’; and
o Unions that are ‘sufficiently representative’ with majority support in a
workplace.
• Representivity is determined with reference to the particular workplace where the
trade union seeks organisational rights, not the unit within which it seeks to
exercise those rights.
• A ‘workplace’ is defined as:
o “The place or places where the employees of an employer work. If an
employer carries on or conducts two or more operations that are
independent of one another by reason of their size, function or organisation,
the place or places where the employees work in connection with each
independent operation, constitutes the workplace for that operation.”
o Association of Mineworkers and Construction Union & Others v Chamber of
Mines & Others (2017):
▪ The Constitutional Court refused to apply the definition literally and
held that a ‘workplace’ is not the place where any single employee
works; it is where the employees of an employer collectively work.
▪ The focus of the definition is on the collective, with location being
relatively immaterial and functional organisation being the more
material signifier.
▪ In casu, the Court upheld a finding that having regard to the
organisational methodology and practicalities of each mining
company, each company constituted a single, industry-wide
workplace rather than the individual mines at which the applicant
union had a majority.
• A ‘representative trade union’ is a registered trade union that is ‘sufficiently
representative’ of the employees employed by an employer in a workplace. A
registered trade union may act jointly with any one or more unions in order to qualify
as ‘sufficiently representative’.
o Unions that are sufficiently representative are afforded the following rights:
▪ Access to the workplace;
▪ Deduction of trade union subscription; and
▪ Leave for trade union activities.
• Note: ‘Sufficiently representative’ trade unions only have 3 out
of the 5 statutory organisational rights.
o In the event of a dispute about whether a union is representative, the
commissioner must:

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▪ Seek to minimise the financial and administrative burden of requiring

an employer to grant organisational rights to more than one
registered trade union;
▪ Seek to minimise the proliferation of trade union representation in a
single workplace and where possible, to encourage a system of one
representative trade union in a workplace; and
▪ Have regard to various factors pertaining to:
• The nature of the workplace;
• The nature of the organisational rights that the trade union
wants to exercise;
• The nature of the sector in which the workplace is situated;
and
• The organisational history at the workplace or any other
workplace of the employer.
o Therefore, a ‘sufficiently representative’ trade union is not a majority trade
union but represents a relatively large number of employees at the
workplace, without representing 50% + 1.
o NUMSA & Others v Bader Bop (Pty) Ltd & Another (2003):
▪ In casu, the Constitutional Court was tasked with deciding whether
minority unions and their members have the right to strike in order to
compel an employer to recognise the union’s shop stewards.
• Note: Shop stewards are representatives of labour unions,
working on the shop floor, connecting workers with union
officials at regional or national levels.
▪ The Court considered the relevant ILO conventions on freedom of
association, the right to organise and the right to collective
bargaining.
▪ This led to the Court’s conclusion that the right does accrue to
minority trade unions and their members.
▪ Moreover, the Court identified two important principles from the
international instruments:
• Freedom of association is, as a rule, to be interpreted to afford
unions the right to recruit members and to represent those
members, at least in individual workplace grievances; and
• Unions have the right to embark on industrial action to pursue
their demands.
▪ Therefore, nothing prevents a trade union from obtaining
organisational rights through other means, including collective
bargaining and industrial action.
• A ‘majority union’ is a registered trade union that on its own, or in combination with
any one or more unions, has as their members, the majority of the employees
employed by an employer in a workplace.
o This requires that at least 50% plus one of the employees employed at the
workplaces must be members of the union(s).

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▪ E.G. If an employer has 100 employees at its workplace and trade

union A represents 51 employees, trade union A would constitute a
majority trade union.
o In addition to the rights contained in Chapter III, majority trade unions have
the right to:
▪ Have their members elected and function as trade union
representatives (shop stewards) in the workplace; and
▪ Disclosure of information.
• Note: Majority trade unions, unlike ‘sufficiently representative’
trade unions, have all of the statutory organisational rights.
Explain the different organisational rights (‘trade union rights’) that
majority and sufficiently representative trade unions are entitled to:
• Note: Trade unions cannot enforce the right to engage in collective bargaining. In
other words, a trade union cannot approach the CCMA or the Labour Court and
request an order compelling another party to engage in collective bargaining.
o However, the LRA establishes certain statutory organisational rights for
trade unions.
o The statutory, organisational rights are the lifeblood of trade unions.
▪ It would be very difficult for any trade union to exist without their
organisational rights.
• These organisational rights do not automatically accrue to any trade union.
o To derive benefit from the statutory organisational rights, a trade union must:
▪ Be registered as a trade union in terms of the LRA; and
▪ Be ‘sufficiently representative’ of the workplace.
o Thus, it follows that minority trade unions would not be in a position to claim
the statutory organisational rights.
• The statutory organisational rights are:
o Access to the workplace:
▪ This right may be exercised by any office-bearer or official of a
representative union and entails the following:
• Recruitment of members;
• Communication with members;
• Otherwise serving members’ interests;
• Holding of meetings outside working hours at the employer’s
premises; and
• Holding of elections or ballots required by the union’s
constitution, at the premises.
o Deductions of trade union subscriptions (‘check-off’ facilities):
▪ A member of the representative union must authorise the employer,
in writing, to make the deductions from their wages.
▪ As soon as possible thereafter, the employer must begin making the
deductions and remit the deducted amount to the representative
union.
▪ The remittance must be made by not later than the 15th day of each
month.

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▪ An employee may revoke the authorisation by giving one month’s

written notice to the employer.
▪ The employer must provide the union, on a monthly basis, with:
• A list of members from whose wages the deductions have
been made;
• Details of the amounts deducted and remitted; and
• A copy of every notice of revocation.
o Election and functions of trade union representatives (shop stewards):
▪ The number of representatives that may be elected depends on the
number of union members employed in the workplace, provided
there are at least ten such members.
▪ Trade union representatives are tasked with the following functions:
• To assist and represent employees in grievance and
disciplinary proceedings;
• To monitor the employer’s compliance with work-related
provisions contained in the LRA and in binding collective
agreements;
• To report any alleged contravention of the said workplace-
related provisions to the employer, the union and any
responsible authority or agency; and
• To perform any other function agreed upon between the union
and the employer.
▪ Trade union representatives are entitled to take reasonable time off,
with pay, during working hours in order to perform their functions as
trade union representatives.
o Leave for trade union activities:
▪ An employee who is an office-bearer of a representative union or of
a federation of unions is entitled to take reasonable leave during
working hours for the purpose of performing the functions of that
office.
▪ The employer and the union must agree on the number of days of
leave, payment in respect thereof and other conditions.
o Disclosure of information:
▪ S 16 provides for the disclosure of information to:
• Trade union representatives;
o All relevant information that will allow a trade union
representative to perform their functions must be
disclosed.
• Majority trade unions; and
o An employer must disclose all relevant information to
the representative trade union that will allow the union
to engage effectively in consultation or collective
bargaining.
• Workplace forums.

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o An employer must disclose all relevant information to

the workplace forum that will allow the forum to engage
effectively in consultation and joint decision making.
▪ The employer must notify, in writing, the union or workplace forum if
information disclosed is confidential.
Availability of statutory organisational rights
Majority trade unions ‘Sufficiently representative’ trade
unions
Access to the workplace Access to the workplace
Deductions of trade union subscriptions Deductions of trade union subscriptions
Election and functions of trade union Leave for trade union activities
representatives
Leave for trade union activities
Disclosure of information
Note: If there are no majority trade
unions at the workplace, a ‘sufficiently
representative’ trade union can
approach the CCMA and claim all 5
statutory organisational rights.

Are minority trade unions entitled to strike in order to gain organisational

rights?
• Yes, per the judgment in NUMSA & Others v Bader Bop (Pty) Ltd & Another,
nothing prevents a trade union from embarking on industrial action to try secure
organisational rights in a workplace.
Disputes concerning the exercise of organisational rights and other
disputes:
• A registered union wishing to exercise any of the organisational rights must notify
an employer, in writing, of its intention and must include the following:
o A copy of its certificate of registration;
o A submission that it is representative and why it should be considered so;
o The workplace in which it wishes to exercise rights; and
o A description of the rights it wishes to exercise, as well as the manner in
which it wishes to exercise them.
• The employer must meet with the union within 30 days in an endeavour to conclude
a collective agreement.
• If a collective agreement is not concluded, the dispute may be referred to the
CCMA.
• Realistically, the only point of contention that could be the subject of disagreement
is whether or not the union is sufficiently representative. In that event, the
commissioner must consider the following factors:
o Seek to minimise the financial and administrative burden of requiring an
employer to grant organisational rights to more than one registered trade
union;

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o Seek to minimise the proliferation of trade union representation in a single

workplace and where possible, to encourage a system of one representative
trade union in a workplace; and
o Have regard to various factors pertaining to:
▪ The nature of the workplace;
▪ The nature of the organisational rights that the trade union wants to
exercise;
▪ The nature of the sector in which the workplace is situated; and
▪ The organisational history at the workplace or any other workplace
of the employer.
• SACTWU v Marley (SA) (Pty) Ltd (2000):
o Facts:
▪ SACTWU is the largest trade union in the clothing and textiles
industry in South Africa.
▪ SACTWU referred a dispute to the CCMA concerning its entitlement
to organisational rights at the employer’s workplace in terms of S 12
and S 13 of the LRA namely access to the workplace and to the
deduction of union subscriptions.
▪ It was common cause that of the 52 employees at the workplace, 29
employees belonged to NUMSA and 22 belonged to SACTWU.
▪ The employer manufactured PVC flooring and fell under the Metal &
Engineering Industries Bargaining Council.
▪ NUMSA was a member of the council and had an agency shop
agreement with the employer.
▪ SACTWU was not a member of the council and its constitution, which
defined the scope of its activities, did not include the manufacture of
PVC flooring.
o CCMA:
▪ The commissioner observed that to acquire organisational rights in
terms of S 12 and S 13, the union had to show that it was ‘sufficiently
representative’ of the employees under consideration.
▪ The phrase was not defined in the LRA.
▪ In coming to a finding, the commissioner had reference to the
requirements of S 21(8)(a) and (b) and concluded as follows:
• Minimising the proliferation of trade union representation in a
single workplace:
o NUMSA had an agency shop agreement which avoided
fragmentation of the workforce.
o Both unions were members of COSATU which
discouraged the poaching of members of other unions.
o There was no good reason to allow such proliferation,
or to believe that it would be to the advantage of
employees.
• Minimising the financial and administrative burden on
requiring an employer to grant organisational rights to more
than one union:

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o The agency shop agreement lessened the

administrative burden on the employer.
o Furthermore, if rights were granted, some employees
would have to pay double subscriptions.
• The nature of the workplace:
o A union ostensibly created to represent employees in
the clothing and textile industry had no place in an
industry manufacturing PVC flooring.
• The nature of the organisational rights sought:
o There was already a union in place and the agency
shop agreement ensured continuity and uniformity
regarding the payment of union subscriptions.
• The nature of the sector:
o SACTWU was not a party to the bargaining council.
• The organisational history at the workplace:
o The employer had a long association with NUMSA.
o The granting of organisational rights to SACTWU would
be the recipe for conflict and discord, and the
unnecessary duplication of administrative tasks, and
would not benefit the employees concerned.
▪ Therefore, SACTWU was denied the grant of any organisational
rights, and its application was dismissed.
Study Unit 8: Class question
Question 1: Employer Bobo (B) has 300 workers and two business premises. Jack is
a senior manager for both plants. 100 workers work at the factory in Johannesburg
and 200 work at the factory in Pretoria. B has one IT system, one HR system and the
same disciplinary codes apply to both workplaces. There are three trade unions – K
has 160 members out of the 300 workers; L has 120 members out of the 300 workers;
and M has 20 members out of the 300 workers.
a. Is Jack entitled to join a trade union?
(4)
b. Does B have one or two workplaces? Why?
(6)
c. Assume that B only has one workplace. Which organisational rights could L claim
and explain the procedure for obtaining these rights?
(8)
d. Is there any way M can enforce organisational rights?
(3)
e. Is there any way L can obtain the right to appoint shop stewards?
(4)

f. What rights and duties do K’s trade union representatives (shop stewards) have
at the workplace?

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g. K does not like the idea of the competition that it is receiving from L. What types
of collective agreements can it conclude with the employer to effectively reduce
the influence of L and what requirements apply before such agreements can be
concluded?

Study Unit 9: Collective bargaining, Strikes and Lockouts

The meaning, requirements and functions of trade unions, employers’
organisations, and bargaining councils:
• Collective bargaining:
o One of the main purposes of the LRA is to promote orderly collective
bargaining at sectoral level.
o The voluntarist nature of the LRA means that very little is said on the nature
of collective bargaining, how collective bargaining should take place,
between whom and on what topics.
o Collective bargaining has been described as:
▪ “A process in which employers and employees make claims upon
each other and resolve them through a process of negotiation,
leading to collective agreements that are mutually beneficial. In the
process, different interests are reconciled. For employees, joining
together allows them to have a more balanced relationship with their
employer. It also provides a mechanism for negotiating a fair share
of the results of their work, with due respect for the financial position
of the enterprise or public service in which they are employed. For
employers, free association enables firms to ensure that competition
is constructive, fair and based on a collaborative effort to raise
productivity and conditions of work.”
o Collective bargaining, as a social institution, is responsive to economic
demands and circumstances.
▪ Individual employees occupy much weaker bargaining positions than
employers. Therefore, individual employees are represented by trade
unions who negotiate on their behalf.
▪ Contracts of employment hardly ever include a clause pertaining to
annual wage increases.
• Inflation erodes the value of salaries.
• Employees may decide to join a trade union, by paying
monthly subscription fees.
• The trade union then negotiates, on a regular basis, with
employers in the best interests of the employees, to increase
their salaries.
o The LRA does not compel collective bargaining.
▪ Although the LRA recognises the virtues of collective bargaining,
nowhere is it suggested that the process should be anything other
than voluntary.
• However, trade unions may obtain organisational rights and
workers have the right to strike.

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▪ The LRA remains facilitative rather than prescriptive, while

unequivocally promoting collective bargaining as the primary
mechanism to establish terms and conditions of employment and
avoid industrial conflict.
• The LRA does not establish an enforceable duty to engage in
collective bargaining, like the one that existed in the previous
labour dispensation.
o The Constitution contemplates that collective bargaining between
employees and employers is key to a fair industrial relations environment.
• Bargaining parties:
o Types of bargaining parties:
▪ Trade unions:
• A trade union is an association of employees whose principal
purpose is to regulate relations between employees and
employers, including an employers’ organisation.
▪ Employers’ organisations:
• An employers’ organisation means 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.
o Requirements for registration of bargaining parties:
▪ Any trade union may apply to the registrar for registration if it
complies with the following requirements:
• Its name or a shortened form of the name does not so closely
resemble the name or shortened form of the name of another
trade union that is likely to mislead or cause confusion;
• It has adopted a constitution that meets the requirements of S
95(5) and (6);
• It has an address in the Republic; and
• It is independent.
o A trade union is regarded as independent if:
▪ It is not under the direct or indirect control of any
employer or employers’ organisation; and
▪ It is free of any interference or influence of any
kind from any employer or employers’
organisation.
▪ Similar criteria apply, with the necessary changes, to employers’
organisations that apply for registration.
o Effect of registration of bargaining parties:
▪ Upon registration, a certificate of registration will be issued and
serves as sufficient proof that a registered trade union or registered
employers’ organisation is a body corporate.
• Registered trade unions and registered employers’
organisations become separate legal entities.
▪ By reason of its status as a body corporate, a registered trade union
or a registered employers’ organisation may:

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• Sue or be sued in its own name;

• Acquire and dispose of property; and
• Conclude agreements.
▪ The fact that a person is a member of a bargaining party does not
make that person liable for any of the obligations or liabilities of the
registered trade union or registered employers’ organisation.
▪ A registered union becomes entitled to:
• Conclude collective agreements;
• Participate in the establishment of a bargaining and statutory
council;
• Participate in the establishment of a workplace forum;
• Represent members in the dispute resolution process; and
• Qualify for statutory organisational rights.
o Ballots about strikes or lock-outs:
▪ There is no requirement for a secret ballot prior to a strike or lock-out
i.e. The LRA does not directly compel compliance with the ballot
system.
▪ A trade union or employers’ organisation, before calling a strike or
lock-out, must conduct a ballot of those of its members in respect of
whom it intends to call the strike or lock-out, in accordance with the
provisions of its constitution.
• Therefore, the constitution of a trade union or employers’
organisation must include a requirement that ballots must be
conducted before a strike or lock-out occurs i.e. The LRA
compels indirect compliance with the ballot system.
o Note: This requirement does not affect the status of the
so-called protected or unprotected strike.
▪ The failure of a registered trade union or a registered employers’
organisation to comply with the provision in its constitution requiring
it to conduct a ballot of those of its members in respect of whom it
intends to call a strike or a lock-out, may not give rise to or constitute
a ground for any litigation that will affect the legality of the strike or
lock-out.
▪ Members may not be disciplined or have their membership
terminated if they fail or refuse to participate in any strike or lock-out
if:
• No ballot was held; or
• A ballot was held but a majority of the members who voted did
not vote in favour.
• Bargaining councils:
o Bargaining councils are voluntary bodies or institutions, established by
registered trade unions and registered employers’ organisations that have
achieved a threshold of representivity in a defined sector.
▪ One or more registered trade unions and one or more registered
employers’ organisations may establish a bargaining council for a

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sector i.e. Composed of representatives of employees and

employers.
o Two main functions of bargaining councils identified by Professor Van Eck:
▪ Conciliation and arbitration; and
▪ Collective bargaining.
o As noted, one of the main purposes of the LRA is to promote collective
bargaining at a sectoral level.
o The primary vehicle to achieve this purpose is the bargaining council.
o The main function of a bargaining council is to serve as a forum for the
negotiation of terms and conditions of employment of the members of the
union parties to the council.
▪ The agreements reached at bargaining councils always provide
better conditions of employment than those contained in the BCEA.
o The powers and functions of a bargaining council are to:
▪ Conclude and enforce collective agreements;
• Note: Collective agreements are those concluded between
bargaining parties, as a result of a successful collective
bargaining process.
▪ Prevent and resolve disputes;
▪ Establish and administer a fund to be used for resolving disputes;
▪ Promote and establish training and education schemes;
▪ Establish and administer pension, provident, medical aid, sick pay,
holiday, unemployment and training schemes or funds or any similar
schemes or funds for the benefit of one or more of the parties to the
bargaining council or their members; and
▪ Develop proposals for submission to NEDLAC or any other
appropriate forum on policy and legislation that may affect the sector.
• Note: Know any 3 main powers and functions of bargaining
councils for test purposes.
What is the meaning of ‘workplace’ in the context of collective
bargaining?
• A ‘workplace’:
o In relation to the public service:
▪ For the purposes of collective bargaining and dispute resolution, for
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
▪ For any other purpose, a national department, provincial
administration, provincial department or organisational component
contemplated in S 7(2) of the Public Service Act, 1994, or any other
part of the public service that the Minister for Public Service and
Administration, after consultation with the Public Service Co-
Ordinating Bargaining Council, demarcates as a workplace;
o 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,
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function or organisation, the place or places where employees work in

connection with each independent operation, constitutes the workplace for
that operation.
What are the definitions for ‘strike’ and ‘lock-out’ in S 213 of the LRA?
• A ‘strike’ is defined as:
o “The partial or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed by the
same employer or by different employers, for the purpose of remedying a
grievance or resolving a dispute in respect of any matter of mutual interest
between employer and employee, and every reference to ‘work’ in this
definition includes overtime work, whether it is voluntary or compulsory.”
▪ Note: The definition consists of 3 main components:
1) Refusal to work;
2) Collective action; and
3) Purpose of the strike.
• A ‘lock-out’ means:
o “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 employer,
whether or not the employer breaches those employees’ contracts of
employment in the course of or for the purpose of that exclusion.”
What are the substantive and procedural requirements for strikes?
• Substantive requirements:
1) Refusal to work:
▪ Partial or complete refusal to work, or retardation or obstruction of
work:
• A strike need not necessarily amount to a complete withdrawal
of labour.
• Strikes assume a variety of forms:
o A partial refusal means that employees perform some
duties but not others.
o Retardation of work is manifested in the so-called ‘go-
slow’ where employees continue to work, but at a
slower pace and the work-to-rule where employees do
only the work they are strictly contractually obliged to
do, and no more.
o The obstruction of work refers to the situation where the
workers affect production in one way or another by
being obstructive.
• There is no strike when employees refuse to work contrary to
any law or collective agreement.
▪ By persons who are or have been employed by the same employers
or by different employers:

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• This phrase clearly includes all those who are currently

employed but extends the scope to those who ‘have been
employed’ in the past and who may no longer be employees.
• Therefore, if a strike is protected, employees could
conceivably continue striking even after they have been
dismissed.
2) Collective action:
▪ Concerted refusal:
• The right to strike is part of the collective bargaining process.
Therefore, by its very nature, striking is collective action.
• The reference to ‘concerted refusal’ and to ‘persons’ in the
definition indicates that more than one person must be
involved in the refusal to work.
• Schoeman & Another v Samsung Electronics (Pty) Ltd (1997):
o An individual employee cannot strike.
o Although a single employer can lock-out employees, a
lock-out also cannot be affected against a single
employee.
3) Purpose of the strike:
▪ For the purpose of remedying a grievance or resolving a dispute:
o The purpose-related requirement distinguishes a strike from
other forms of work stoppage.
o Central to a strike is the demand that gives rise to it and this
should reflect the required purpose that:
▪ A grievance be remedied; or
▪ A dispute resolved.
o The word ‘dispute’ includes an alleged dispute. Therefore, it is
not necessary for the party in dispute to do more than allege
that a dispute exists.
o All employees of an employer are entitled to strike whether or
not they are directly involved in the dispute.
o If there is no dispute, there cannot be a strike:
▪ If employees refuse to work but do not seek to remedy
a grievance or resolve a dispute, there is no strike in
terms of the definition.
▪ A union may not strike in support of an unlawful
demand.
▪ If the dispute giving rise to a strike has been settled or
the employer has agreed to the demands, the strike no
longer has a purpose.
• A strike can terminate in many ways such as
when the strikers abandon the strike and return
to work unconditionally; or
• If the casus belli is removed, for example, by the
employer conceding to the demands of the
strikers or by removing the grievance or by

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resolving the dispute, then the foundations of the

strike fall away.
o Casus belli means “an act or event that
provokes or is used to justify war”.
▪ In respect of a matter of mutual interest:
o The LRA does not define a matter of mutual interest.
o However, the concept assumes two intertwined elements:
▪ The existence of an employment relationship; and
▪ A mutuality of interest shared by the employer and the
employee.
o Moreover, the LRA does not distinguish between ‘disputes of
right’ and ‘disputes of interest’ and thus, the concept is said to
include both categories of dispute.
▪ ‘Disputes of right’ are conflicts that arise over the
interpretation and application of existing labour laws,
employment contracts, collective bargaining
agreements, custom and practice or common law of
employment.
• Cannot be settled by negotiation.
• E.G. Unfair dismissal; unfair discrimination; and
unfair labour practices.
▪ ‘Disputes of interest’ are disputes between employers
and employees where neither party has a right to that
which it wants.
• Can be resolved through collective bargaining or
negotiation.
• E.G. Wage increase disputes.
▪ Therefore: “A dispute of interest is one in which the
claimant party seeks a benefit or advantage to which
[they] have no legal entitlement; a dispute of right is one
concerning the alleged infringement of a legal right, or
the conferment of a benefit to which the claimant is
legally entitled.”
• Procedural requirements:
o Every employee has the right to strike and every employer has recourse to
lock-out if:
▪ The issue in dispute has been referred to a bargaining council or to
the CCMA for conciliation; and
• A certificate stating that the dispute remains unresolved has
been issued; or
• A period of 30 days has elapsed (or any extension of that
period agreed to between the parties to the dispute) since the
date on which the bargaining council or the CCMA received
the referral.
o Note: This is an attempt to mediate the dispute through
a neutral 3rd party.

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▪ In the case of a proposed strike, at least 48 hours’ notice of the

commencement of the strike, in writing, has been given to the
employer unless:
• The dispute relates to a collective agreement to be concluded
in a bargaining council, in which case, notice must have been
given to that bargaining council; or
• The employer is a member of an employers’ organisation that
is a party to the dispute, in which case, notice must have been
given to that employers’ organisation.
o SATAWU & Others v Equity Aviation Services (Pty) Ltd
(2006):
▪ Facts:
• SATAWU, the majority trade union, called
a strike in support of a wage demand.
• A minority union decided not to strike, but
some members of that union joined in the
strike.
• This situation caused the employer to
regard the strike by the majority trade
union as protected, but the participation
by some minority union members as
unprotected.
• These workers were dismissed.
• Equity Aviation (Pty) Ltd claimed that
when a trade union issued notice to the
employer it acted on behalf of its
members and thus, only those
employees who were union members
could strike.
▪ Labour Court:
• The Labour Court disagreed with the
reasoning of Equity Aviation (Pty) Ltd
because S 64(1) of the LRA gives ‘every
employee the right to strike’ without any
clear specification on whose behalf the
notice should be given.
• S 65 does not prohibit those employees
who belong to a minority union from
striking.
• Therefore, as long as notice had been
given in the proper manner, every
employee could legitimately join in the
strike action.
▪ Labour Appeal Court:
• On appeal, the Labour Appeal Court
examined whether only those employees

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who were members of the trade union

issuing the notice to the employer were
entitled to protection in terms of S 64(1)
of the LRA.
• The Court held that S 64(1) requires only
that the ‘issue in dispute’ must have been
referred for conciliation and that 48 hours’
notice has been given to the employer
and that thereafter, any employee may
join the strike, provided that the intention
of all strikers is to resolve the issue in
dispute.
o Note: A notice of commencement of a strike need not
be given when:
▪ The parties to a dispute are members of a
bargaining council and the dispute has been
dealt with by the council, in accordance with its
constitution;
▪ The strike conforms to the procedures set out in
a collective agreement;
▪ Employees strike in response to an unprotected
lock-out; and
▪ The employer fails to comply with what is known
as the ‘status quo’ provision in S 64(4).
▪ In the case of a proposed lock-out, at least 48 hours’ notice of the
commencement of the lock-out, in writing, has been given to any
trade union that is a party to the dispute, or, if there is no such trade
union, to the employees, unless the issue in dispute relates to a
collective agreement to be concluded in a bargaining council, in
which case, notice must have been given to that bargaining council;
or
▪ The case of a proposed strike or lock-out where the State is the
employer, at least 7 days’ notice of the commencement of the strike
or lock-out has been given to the parties.
Substantive and procedural limitations on protected and unprotected
strikes:
• Employees engaged in a protected strike are given immunity from delictual claims
and claims for breach of contract and are protected against dismissal.
o The right to strike is constitutionally protected in S 23(5) of the Constitution.
o However, no right is absolute and the LRA provides for specific limitations
to the right to strike i.e. Substantive and procedural requirements.
• Upon ascertaining whether the industrial action falls within the definition of a strike,
one must ascertain whether it is a protected or unprotected strike, having regard
to the substantive and procedural limitations outlined herewith.
o Substantive limitations:

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▪ S 65 provides that no person may take part in a strike or lock-out or

in any conduct in contemplation or furtherance of a strike or lock-out
if:
• There is a collective agreement in place that binds such
persons and prohibits them from taking part in a strike or lock-
out in respect of an issue in dispute;
o The purpose of this limitation is to prevent employers
and employees from resorting to the right to strike or
lock-out in situations where the parties themselves
have previously agreed that it will not be appropriate for
them to resort to industrial action over a particular
issue.
o Only a registered trade union can agree to waive the
right to strike in terms of S 65(1)(a).
o AMCU v Chamber of Mines (2017):
▪ Facts:
• At issue is whether workers at five gold
mines may exercise the right to strike
whiled an agreement prohibiting strikes,
to which they were not party, was in force.
• The union representing the majority of
workers at each of the mines is the first
applicant, AMCU. The second and further
applicants are its members at those
mines. But AMCU is not the majority
union at any of the mining companies
who own the mines.
• The question is whether an agreement
concluded between mining companies
and their collective representative, on the
one hand, and unions representing a
majority of workers of those companies,
on the other, binds employees at
individual mines where their own union,
which is not party to the agreement, is the
majority union.
• The legal issue arises from three
provisions of the LRA:
o S 23(1)(d) which enables
employers and unions to make
binding on non-parties, a
collective agreement they have
concluded if:
▪ The employers are
identified in the agreement;

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▪ The agreement expressly

binds them; and
▪ The trade unions’ party to
the agreement ‘have as
their members the majority
of employees employed by
the employer in the
workplace’.
o S 213 which defines ‘workplace’.
o S 65 which prohibits striking by
anyone who ‘is bound by any
arbitration award or collective
agreement that regulates the
issue in dispute’.
• Q: Did the collective agreement
concluded by the Chamber of Mines and
NUM, Solidarity and UASA bind AMCU
members at the five mines where it was
in the majority, such that it was prohibited
from striking?
o If it did bind AMCU, the LRA
prohibited its members from
striking.
o If it did not bind AMCU, its
members were statutorily at liberty
to strike.
▪ The question turns to the
meaning of ‘workplace’ in
the LRA, specifically within
the context of S 23(1)(d).
• AMCU contended that S 23(1)(d)
unjustifiably limited its members’ rights to
fair labour practices, including the right to
bargain collectively through AMCU, the
right to strike and the right to freedom of
association.
▪ Court:
• The Constitutional Court held that
‘workplace’ is not the place where any
single employee works. It is where the
employees of an employer collectively
work.
o This sees workers as a collectivity,
rather than as isolated individuals.
• Within the meaning of ‘workplace’,
location is not primary: functional

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organisation is. This means that the place

or places where workers work may
constitute a single workplace.
o This eliminates any notion, which
the ordinary meaning of
‘workplace’ might encourage, that
each single place where a worker
works is a separate ‘workplace’.
• The Court upheld the findings of the
Labour Court and the Labour Appeal
Court that each AMCU-majority mine was
not a separate ‘workplace’ i.e. Each
mining house operated integrally as a
single workplace.
o Therefore, the collective
agreement was validly extended
to AMCU members at the AMCU-
majority mines.
• The Court held that if there is to be orderly
and productive collective bargaining,
some form of majority rule in the
workplace must apply.
o Thus, S 23(1)(d) gives enhanced
power within a workplace to a
majority union and it does so for
powerful reasons that are
functional to enhancing
employees’ bargaining power
through a single representative
bargaining agent.
o The Court acknowledged that the
codification of majoritarianism in S
23(1)(d) limits the right to strike but
contends that this is justifiable for
purposes of orderly collective
bargaining.
o See also: Van Eck “In the Name of ‘Workplace and
Majoritarianism’: Though Shalt not Strike ―
Association of Mineworkers & Construction Union v
Chamber of Mines (2017) 38 ILJ 831 (CC) and National
Union of Metalworkers of SA & Others v Bader Bop
(Pty) Ltd & Another (2003) 24 ILJ 305 (CC)”.
• That person is bound by an agreement that requires such a
dispute to be referred to arbitration;
o This subsection refers to an ‘agreement’ rather than a
‘collective agreement’.

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o Therefore, it is possible that other agreements between

employers and employees, including individual
contracts of employment, will be covered by this
provision.
• The issue in dispute is one that a party has the right to refer to
the Labour Court or arbitration in terms of the LRA or any other
employment law; or
o Although the LRA provides a framework within which
employers and employees (and/or their
representatives) can bargain collectively on matters of
mutual interest, the LRA endorses the use of arbitration
in certain circumstances.
o This subsection requires the court to identify those
disputes that a party has the right to refer to arbitration
or the Labour Court in terms of the LRA or any other
employment law.
o The most common disputes that fall into this category
include disputes about unfair dismissals, unfair labour
practices and the application and interpretation of
collective agreements.
o Note: Disputes about organisational rights fall into a
unique category.
▪ Trade unions that meet the required thresholds
set by SS 12 to 15 of the LRA may resort to
arbitration to acquire organisational rights.
• Read S 65(2)(a) alongside S 65(2)(b) of
the LRA.
▪ Therefore, unions that meet the required
thresholds may elect either to strike or to refer
the dispute to arbitration.
▪ Unions that do not meet the threshold (and do
not qualify for the acquisition of organisational
rights through arbitration) may exercise the right
to strike in support of their demands.
o E.G. Trade Union ABC engages in a strike at Employer
Z. The reason for the strike is that it dismissed one of
its shop stewards, Mrs P. Trade Union ABC is
disgruntled because they allege that there was no fair
reason and procedure for the dismissal.
▪ Trade Union ABC’s right to strike is limited
insofar as the alleged dismissal relates to an
unfair dismissal dispute, which constitutes a
‘dispute of right’, that must be referred to the
CCMA for resolution.
• That person is engaged in an essential service or
maintenance service.

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o ‘Essential services’ are those that are necessary for the

protection of life or personal safety:
▪ A service, the interruption of which, endangers
the life, personal safety or health of the whole or
any part of the population;
▪ The Parliamentary service; and
▪ The South African Police Services.
• South African Police Service v Police and
Prisons Civil Rights Union & Another
(2011):
o Not all persons engaged in the
South African Police Service are
engaged in an essential service.
▪ There are both uniformed
and non-uniformed
members of the South
African Police Service.
o Only members of the Police
Service constitute an essential
service.
o Persons who are employees but
not members of the Police Service
are not engaged in an essential
service and therefore, enjoy the
right to strike.
o ‘Maintenance services’ are those which, although not
essential, would result in material physical destruction
to any working area, plant or machinery were it to be
interrupted.
o Note: Although the rest of the LRA covers essential and
maintenance workers, they are not entitled to strike to
enforce their demands.

o Procedural limitations:
▪ Referral to conciliation:
• The trade union must fill out the requisite CCMA forms and
then send them to the CCMA, notifying them about the
possible strike.
• The CCMA must then gather the parties to the dispute to
engage in conciliation or mediation.
▪ Issuing of a certificate of outcome or expiry of 30-day period:
• If the dispute cannot be resolved or if the dispute-resolution
process takes longer than 30 days, the trade union may
proceed to the notification requirement.
▪ Notice:
• See above for the notification periods.

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What are the requirements for protected secondary strikes?

• A ‘secondary strike’ means:
o “A strike, or conduct in contemplation or furtherance of a strike, that is in
support of a strike by other employees against their employer, but does not
include a strike in pursuit of a demand that has been referred to a council if
the striking employees, employed within the registered scope of that council,
have a material interest in that demand.”
▪ The LRA establishes the right to engage in secondary strikes, aimed
at increasing the pressure on the employer in the primary strike.
• There are 3 requirements for a protected secondary strike:
1) The primary strike must be lawful;
2) 7 days’ notice must have been given to the secondary employer; and
3) The nature and extent of the secondary strike must be reasonable in relation
to the possible direct or indirect effect that the secondary strike may have
on the business of the primary employer.
• E.G. Employees at Employer A, a motor manufacturer, are engaged in a primary
strike. Employees at Employer B, a tyre company, in sympathy for the employees
at Employer A, engage in a secondary strike. By striking, the secondary strikes do
not supply tyres to Employer A to increase pressure on the motor manufacturer.
o It is important that there exists a causal link between the strikes.
▪ Thus, workers of a brick manufacturer could not engage in a
protected secondary strike because there is no possibility that they
could have an influence on Employer A, a motor manufacturer.
Explain the immunities in respect of protected strikes and the
consequences of unprotected strikes:
• Immunities in respect of protected strikes:
o Against claims for breach of contract or delict:
▪ Immunity is given against delictual claims by the employer and
against claims for breach of contract.
▪ The employer is also prevented from interdicting anyone taking part
in a protected strike or lock-out or claiming damages from any
conduct in contemplation or furtherance of a strike or lock-out or any
other civil action.
▪ However, employees are not entitled to receive remuneration during
the strike i.e. ‘No-work-no-pay’.
▪ Moreover, employees are not immune from any conduct that is
unlawful i.e. Intimidation of other employees; or destruction of
property.
o Against dismissal:
▪ An employer may not dismiss employees for taking part in a
protected strike.
▪ If an employee is dismissed for participation in a protected strike, this
will be an automatically unfair dismissal in terms of S 187(1)(a) of the
LRA.

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▪ As mentioned above, employees may not engage in any unlawful

conduct during a strike; if they do, they may be dismissed fairly.
▪ Furthermore, employees may be dismissed on the basis of the
employer’s operational requirements, but the courts will then
examine whether the real reason for the dismissal was indeed the
operational reasons of the employer.
• SACWU & Others v Afrox Ltd (1999):
o The Labour Appeal Court held that there is a two-fold
enquiry to establish the reason for dismissal of strikers:
▪ “The first step is to determine the factual
causation…would the dismissal have occurred if
there was no participation or support for the
strike? If the answer is yes, then dismissal was
not automatically unfair. If the answer is no, that
does not render the dismissal automatically
unfair; the next issue is one of legal causation,
namely whether such participation or conduct
was the ‘main’ or ‘dominant’ or ‘proximate’ or
‘most likely cause’ of the dismissal.”
• The employer must follow the usual procedures for a dismissal
for operational requirements before dismissing employees,
who are on a protected strike.
▪ Item 6: Code of Good Practice: Dismissal
• Dismissals and industrial action:
o Participation in a strike that does not comply with the
provisions of Chapter IV is misconduct. However, like
any other act of misconduct, it does not always deserve
dismissal. The substantive fairness of dismissal in
these circumstances must be determined in the light of
the facts of the case, including:
▪ The seriousness of the contravention of the
LRA;
▪ Attempts made to comply with the LRA; and
▪ Whether or not the strike was in response to
unjustified conduct by the employer.
o Prior to dismissal the employer should, at the earliest
opportunity, contact a trade union official to discuss the
course of action it intends to adopt. The employer
should issue an ultimatum in clear and unambiguous
terms that should state what is required of the
employees and what sanction will be imposed if they
do not comply with the ultimatum. The employees
should be allowed sufficient time to reflect on the
ultimatum and respond to it, either by complying with it
or rejecting it. If the employer cannot reasonably be

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expected to extend these steps to the employees in

question, the employer may dispense with them.
▪ Modise & Others v Steve’s Spar Blackheath (2000):
• Facts:
o Steve’s Spar Blackheath dismissed a number of
employees who had embarked on a so-called ‘wildcat
strike’ i.e. Employees who embark on industrial action
without prior union authorisation.
o Before the dismissal, Steve’s Spar Blackheath issued
an ultimatum giving the strikers a chance to halt the
strike as a means of avoiding dismissal.
• Court:
o Where there is an unprotected strike in a workplace,
the employer is required to contact the trade union
official to discuss the course of action it intends to take.
o The employer must discuss an ultimatum, in clear and
unambiguous terms, which ultimatum should state
what is expected of the employees and what the
sanction will be if they should fail to do so.
o The Labour Appeal Court found the dismissals to be
unfair because there had been no hearings.
▪ Irrespective of an ultimatum, no employee
should be fired before they have had the chance
to be heard in terms of the universal principle of
audi alteram partem.
▪ The Labour Appeal Court reinstated the
dismissed strikers.
o Thus, before an employer may dismiss employees in
the circumstances of an unprotected strike, there must
be some form of a hearing, giving effect to the audi
alteram partem principle.
▪ The Labour Appeal Court drew a distinction
between an ultimatum and the opportunity to be
heard.
o However, the nature of the hearing will be determined
by the circumstances of each case.
▪ In some cases, a formal hearing will be required
and in others, an informal hearing will be
sufficient.
• Q: Is it best for the hearing to occur before or after the
ultimatum is given?
o “A hearing and an ultimatum are two different things.
They serve separate and distinct purposes. They occur
or, at least ought to occur, at different times in the
course of a dispute. The purpose of a hearing is to hear
what explanation the other side has for its conduct and

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to hear such representations as it may make about

what action, if any, can or should be taken against it.
The purpose of an ultimatum is not to elicit any
information or explanations from the workers, but to
give the workers an opportunity to reflect on their
conduct, digest issues and, if need be, seek advice
before making the decision whether to heed the
ultimatum or not.” – Modise v Steve’s Spar Blackheath
(2000)
▪ Therefore, the hearing is a matter of pre-
dismissal procedure.
▪ By contrast, a pre-dismissal ultimatum appears
to have more in common with a final warning to
striking employees about the consequences of
continuing with their misconduct.
▪ An ultimatum, not to be equated with a formal
disciplinary warning, is a special kind of warning
issued in the context, usually, of collective
industrial action.
▪ Its purpose is to provide a cooling-off period for
striking workers before any final decision is
taken to dismiss.
o Therefore, an opportunity to make representations
should precede an ultimatum.
▪ Even during an unprotected or unlawful strike,
the audi alteram partem principle must be
adhered to.
▪ The practical implications of this is that a there
are now more hurdles to jump before a company
can move to dismantle an unprotected strike and
sanction those who persist with the action.
▪ NUM & Others v Billard Contractors CC & Another (2006):
• Facts:
o In 1999, a brickworks called Midway Bricks (Pty) Ltd
was established and procured its workforce through a
labour broker, Billard Contractors CC.
o In the course of 2001, a significant number of the
employees became members of the NUM. A number of
grievances were raised. During July 2001, a
recognition agreement was concluded between NUM
and Billard Contractors.
o Regular meetings took place at the workplace between
NUM shop stewards and the representative of Billard
Contractors CC.
o On 16 May 2002, one of the NUM shop stewards was
suspended by Billard Contractors CC on the grounds

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of an alleged disciplinary infraction, pending a

disciplinary enquiry.
o On the following day, 17 May 2002, a significant
number of employees did not work. During this period,
the workers concerned gathered at the entrance gate
to Midway Bricks (Pty) Ltd and there was singing and
dancing.
o On 22 May 2002, during a meeting between Billard
Contractors CC and the NUM shop stewards, the
suspension of one of the NUM shop stewards was
uplifted. However, the managing director of Midway
Bricks (Pty) Ltd was not happy with this decision and
insisted that the suspension be reinstated. Later that
day, the NUM shop steward was again suspended. On
the same day, Midway Bricks (Pty) Ltd gave written
notice of termination of the labour broking agreement
with Billard Contractors CC, with effect from 30 June
2002.
o On 23 May 2002, a further work stoppage took place.
o On 27 May 2002, a further work stoppage took place.
Billard Contractors CC issued an ultimatum that
workers should return to work. The workers returned to
work.
o On 28 May 2002, a further work stoppage took place.
Again, Billard Contractors CC issued an ultimatum that
workers should return to work. The workers returned to
work. That afternoon, a meeting took place between
Billard Contractors CC, a NUM representative and the
NUM shop stewards. The NUM representative
indicated that the union did not regard the work
stoppages as strike action because it had not been
preceded by the declaration of a dispute and
conciliation at the CCMA; and the workers were
frustrated because Billard Contractors CC had not
adhered to undertakings that had been given and in
particular had done an about turn after agreeing to lift
the suspension of one of the NUM shop stewards.
▪ Billard Contractors CC indicated that there had
been four strikes over a period of 12 days and
that the next unprotected strike would result in
dismissals.
o On 29 May 2002, workers congregated once again at
the entrance gate to Midway Bricks (Pty) Ltd. Billard
Contractors CC issued a notice in which an ultimatum
was given to the workers.

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▪ The notice, addressed to the NUM and all

employees of Billard Contractors CC, gave them
until 11:30 that day to furnish reasons why the
striking workers should not be dismissed.
▪ At approximately 12:00 that day, Billard
Contractors CC decided to dismiss all the
employees of Billard Contractors CC, with the
exception of the workers who had in fact
continued to work inside the factory and who
had not participated in the work stoppage on 29
May 2002.
• In total, approximately 240 workers were
dismissed.
• Subsequently, 39 of these workers were
re-employed by Midway Bricks (Pty) Ltd.
• A list of 200 individual applicants was
provided who had been dismissed on 29
May 2002 and who had not subsequently
been re-instated or re-employed.
• Among these were 14 individual
applicants who were not on duty on 29
May 2002, or on any of the four days on
which the work stoppages took place.
• Among these were a further 25 individual
applicants who were not on duty on 29
May 2002, but who were on duty on one
or more of the other four days on which
work stoppages took place.
• Court:
o The Court held that Billard Contractors CC did not
readily appreciate the distinction between a hearing (as
contemplated in Modise v Steve’s Spar Blackheath)
and an ultimatum.
o The Court held that Billard Contractors CC could not
fairly dismiss striking workers on that day without giving
them or their union an opportunity to give reasons why
they should not be dismissed.
▪ Although the notice gave the NUM and all
employees of Billard Contractors CC until 11:30
on 29 May 2002 to furnish reasons why the
striking workers should not be dismissed, the
Court confirmed that this was too little time for
meaningful engagement.
▪ The conduct of Billard Contractors CC was held
to have been overhasty in the circumstances
because it failed to give an adequate opportunity

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to everyone concerned to calm down and have

a sensible discussion about what should take
place next.
o As far as the group of 14 individual applicants was
concerned, the Court found that they should be
reinstated.
o As far as the group of 25 individual applicants was
concerned, the Court found that they should also be
reinstated because they did not participate in
misconduct on one or more of the days preceding 29
May 2002 i.e. No evidence was lead to the extent of
their misconduct on those days.
o As for the remaining dismissed employees, the Court
found that their dismissals were for a fair reason, but
that a fair procedure was not followed in dismissing
them.
o Against discrimination:
▪ No employer may do anything that will discriminate against, or
prejudice, those workers on strike by preferring or benefitting those
not on strike.
▪ This means that employers may not give financial benefits or
bonuses to those workers not on strike or withdraw discretionary
benefits from those on strike.
o Against claims for compensation:
▪ If a strike or lock-out is protected, there is immunity from a claim for
compensation.
• Consequences of unprotected strikes:
o S 68(1)(b) of the LRA provides that where a strike or lock-out does not
comply with the requirements for a protected strike or lock-out, the Labour
Court has jurisdiction to order the payment of just and equitable
compensation for any loss attributable to the strike or lock-out.
▪ The Labour Court is required to take cognisance of the following
factors when determining ‘just and equitable compensation’:
• Whether attempts were made to comply with the provisions of
the LRA and what the nature of those attempts were;
• Whether the strike or lock-out was premeditated;
• Whether the strike or lock-out was in response to unjustified
conduct by another party to the dispute;
• Whether there was compliance with an order restraining the
strike or lock-out;
• The interests of orderly collective bargaining;
• The duration of the strike; and
• The financial position of the employer, trade union and the
employees.
▪ Before the Labour Court will exercise its discretion, it must be
satisfied that:

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• The strike is indeed unprotected;

• The employees or trade unions involved have participated in
the unprotected strike; and
• The employer suffered a loss as a result of the strike.
▪ Algoa Bus Company v SATAWU & Others (2010):
• The Labour Court held that the employer was entitled to
compensation where the strike was unlawful and brought the
business to a halt; but the company was not entitled to full
compensation in a situation where the strike was short-lived.
• Compensation must be just and equitable, meaning that ‘no
more than that compensation must be fair’.

The right to picket:

• South Africa has a problem with unprotected and violent strikes.
o To mitigate this problem, NEDLAC has issued the Code of Good Practice
on Picketing (‘the Code’) to regulate the situation where members and
supporters of a registered trade union picket in support of a protected strike
or in opposition to protected and unprotected lock-outs.
o The right to picket is regulated by S 69 of the LRA and is enshrined in S 16
(freedom of expression) and S 18 (freedom of assembly) of the Constitution.
• According to item 26(1) of the Code, the purpose of picketing is:
o “…to peacefully encourage non-striking employees and members of the
public to oppose a lock-out or to support strikers involved in a protected
strike. The nature of the support can vary. It may be to encourage
employees not to work during the strike or lock-out. It may be to dissuade
replacement labour from working. It may also be to persuade members of
the public or other employers and their employees not to do business with
the employer.”
• The courts have held that picketing employees may stand outside the gates of the
employer’s premises in a public area and hold, display or wave placards to
communicate with the employer and the public or anyone who may have dealings
with the employer.
o The communications should not constitute a criminal offence.
o The picketing employees and supporters can also speak to members of the
public and sing, chant or dance to draw attention to their cause.
o The only duty of the police is to uphold the law and not to take any view on
the merits of the dispute.
• The picket may be held in any place to which the public has access but outside the
premises of the employer or, with the employer’s permission, inside its premises.
o Permission to hold the picket inside the employer’s premises may not be
unreasonably withheld.
• Unless there is a binding collective agreement that regulates picketing, when a
dispute that may give rise to a strike is referred for conciliation, the commissioner
conciliating the dispute must attempt to secure agreement on picketing rules before
the 30-day ‘cool-off’ period expires.

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o If no picketing rules are agreed or established in that period, the

commissioner must determine the picketing rules.
• No picketing may take place unless picketing rules are agreed in a collective
agreement binding on the trade union concerned, or in an agreement secured by
a commissioner during the 30-day ‘cool-off’ period, or determined by the
commissioner at the time that a certificate of outcome is issued.
• The protections that are afforded to employees who participate in a protected strike
are extended to employees who call for or participate in a picket that complies with
S 69.
• If there is a dispute about the right to picket, including any dispute about whether
the right to picket has been undermined or a material breach of a picketing
agreement, the dispute must be referred to the CCMA for conciliation.
o If it remains unresolved, it may be referred to the Labour Court for
adjudication.
• SA Transport & Allied Workers Union & Another v Garvas & Others (2012):
o Facts:
▪ SATAWU had organised a gathering of thousands of people
throughout the City of Cape Town to register employment-related
concerns of its members within the security industry.
▪ Some 50 people had lost their lives in the course of SATAWU’s
protracted strike action before the gathering.
▪ During the gathering, much property, including private property, was
damaged.
▪ In response to a claim for damages made by people who claimed that
they suffered loss as a result of the gathering, SATAWU challenged
the constitutional validity of the law that regulates public gatherings
by imposing liability on organisers for riot damage arising out of a
gathering.
▪ SATAWU argued that the defence allowed by the law unjustifiably
limits the right to freedom of assembly in the Constitution.
o Court:
▪ The Constitutional Court held that the law in question aims to afford
victims effective legal recourse where a gathering becomes
destructive and results in injury, loss of property or life.
• The said law is there to protect members of society, including
those who do not have the resources of capability to identify
and pursue the perpetrators of the riot damage for which they
seek compensation.
• When a gathering imperils the physical integrity, the lives and
the sources of livelihood of the vulnerable, liability for
damages arising therefrom must be borne by the organisers
that are responsible for setting in motion the events which
gave rise to the suffered loss.
▪ The fact that every right must be exercised with due regard to the
rights of others cannot be overemphasised.

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• The organisers always have a choice between exercising the

right to assemble and cancelling the gathering in the light of
the reasonably foreseeable damage. By contrast, the victims
of riot damage do not have any choice in relation to what
happens to them or their belongings. For this reason, the
decision to exercise the right to assemble is one that only the
organisers may take.
• This must always be done with the consciousness of any
foreseeable harm that may befall others as a consequence of
the gathering. The organisers must therefore always reflect on
and reconcile themselves with the risk of a violation of the
rights of innocent bystanders which could result from forging
ahead with the gathering.
▪ The Court emphasised that the reasonable steps taken on the one
hand and reasonable foreseeability on the other hand were inter-
related. Organisers are required to be alive to the possibility of
damage and to cater for it from the beginning of the planning of the
protest action until the end of the protest action. At every stage in the
process of planning, and during the gathering, organisers must
always be satisfied of two things: that an act or omission causing
damage is not reasonably foreseeable and that reasonable steps are
continuously taken to ensure that the act or omission that becomes
reasonably foreseeable is prevented.
▪ In terms of the issue of whether the law unjustifiably limits the right to
freedom of assembly the Court held that the Act does not negate the
right to freedom of assembly, but merely subjects the exercise of that
right to strict conditions, in a way designed to moderate or prevent
damage to property or injury to people.
▪ The majority held that the defence provided for by the law is viable
and that the limitation on the right to freedom of assembly in S 17 of
the Constitution is reasonable and justifiable, because it serves an
important purpose and reasonably balances the conflicting rights of
organisers, potential participants and often vulnerable and helpless
victims of a gathering or demonstration which degenerates into
violence.
▪ For these reasons, the majority dismissed the appeal.

Lock-outs:
• A lock-out is a form of industrial action that may be exercised by an employer.
o “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 employer,
whether or not the employer breaches those employees’ contracts of
employment in the course of or for the purpose of that exclusion.”
▪ The definition does not allow for a secondary lock-out.
• A distinction is drawn between offensive and defensive lock-outs.

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o Offensive lock-outs:
▪ The employer elects, of its own accord, to lock employees out in
response to a dispute of mutual interest.
▪ The employer is not entitled to engage replacement (‘scab’) labour
where there is an offensive lock-out.
o Defensive lock-outs:
▪ The employer effects a lock-out in response to a strike engaged in by
its employees.
▪ The employer is entitled to employ persons to continue to maintain
production during the course of the protected strike.
• The substantive and procedural requirements for a protected lock-out are the same
as protected strikes.

Relevant provisions of the LRA pertaining to strikes and lock-outs:

S 64. Right to strike and recourse to lock-out
(1) Every employee has the right to strike and every employer has recourse to lock
out if:
(a) The issue in dispute has been referred to a council or to the Commission as
required by this Act, and:
(i) A certificate stating that the dispute remains unresolved has been issued;
or
(ii) A period of 30 days, or any extension of that period agreed to between the
parties to the dispute, has elapsed since the referral was received by the
council or the Commission; and after that
(b) In the case of a proposed strike, at least 48 hours' notice of the
commencement of the strike, in writing, has been given to the employer,
unless
(i) The issue in dispute relates to a collective agreement to be concluded in
a council, in which case, notice must have been given to that council; or
(ii) The employer is a member of an employers' organisation that is a party to
the dispute, in which case, notice must have been given to that employers'
organisation; or
(c) In the case of a proposed lock-out, at least 48 hours' notice of the
commencement of the lock-out, in writing, has been given to any trade union
that is a party to the dispute, or, if there is no such trade union, to the
employees, unless the issue in dispute relates to a collective agreement to be
concluded in a council, in which case, notice must have been given to that
council; or
(d) The case of a proposed strike or lock-out where the State is the employer, at
least 7 days' notice of the commencement of the strike or lock-out has been
given to the parties contemplated in paragraphs (b) and (c).
(2) N/A
(3) The requirements of subsection (1) do not apply to a strike or a lock-out if:
(a) The parties to the dispute are members of a council, and the dispute has
been dealt with by that council in accordance with its constitution;

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(b) The strike or lock-out conforms with the procedures in a collective

agreement;
(c) The employees strike in response to a lock-out by their employer that does
not comply with the provisions of this Chapter;
(d) The employer locks out its employees in response to their taking part in a
strike that does not conform with the provisions of this Chapter; or
(e) The employer fails to comply with the requirements of subsections (4) and
(5).
(4) Any employee who or any trade union that refers a dispute about a unilateral
change to terms and conditions of employment to a council or the Commission in
terms of subsection (1)(a) may, in the referral, and for the period referred to in
subsection (1)(a):
(a) Require the employer not to implement unilaterally the change to terms and
conditions of employment; or
(b) If the employer has already implemented the change unilaterally, require the
employer to restore the terms and conditions of employment that applied
before the change.
(5) The employer must comply with a requirement in terms of subsection (4) within 48
hours of service of the referral on the employer.
S 65. Limitations on right to strike or recourse to lock-out
(1) No person may take part in a strike or a lock-out or in any conduct in contemplation
or furtherance of a strike or a lock-out if:
(a) That person is bound by a collective agreement that prohibits a strike or lock-
out in respect of the issue in dispute;
(b) That person is bound by an agreement that requires the issue in dispute to
be referred to arbitration;
(c) The issue in dispute is one that a party has the right to refer to arbitration or
to the Labour Court in terms of this Act;
(d) that person is engaged in:
(i) An essential service; or
(ii) A maintenance service.
(2)
(a) Despite S 65(1)(c), a person may take part in a strike or a lock-out or in any
conduct in contemplation or in furtherance of a strike or lock-out if the issue
in dispute is about any matter dealt with in SS 12 to 15.
(b) If the registered trade union has given notice of the proposed strike in terms
of S 64(1) in respect of an issue in dispute referred to in paragraph (a), it may
not exercise the right to refer the dispute to arbitration in terms of S 21 for a
period of 12 months from the date of the notice.
(3) Subject to a collective agreement, no person may take part in a strike or a lock-
out or in any conduct in contemplation or furtherance of a strike or lock-out:
(a) If that person is bound by:
(i) Any arbitration award or collective agreement that regulates the issue in
dispute; or

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(ii) Any determination made in terms of S 44 by the Minister that regulates

the issue in dispute; or
(b) Any determination made in terms of the Wage Act and that regulates the
issue in dispute, during the first year of that determination.

Study Unit 9: Class question

Question 1: Explain whether the LRA imposes a duty to bargain? Describe the
meaning of trade union, employers’ organisation and bargaining council. What are the
main requirements for the registration of the mentioned institutions and what are their
main functions?
(12)
Question 2: Employer Z, a construction company, has two trade unions at its
workplace. Trade union A represents 51% of workers and trade union B represents
35%. The contracts of employment do not contain a clause indicating what percentage
increase employees will receive on an annual basis. The employer offers 4% increase
and trade union A demands 8%. Z dismisses one of B’s shop stewards. B refers a
dispute to the CCMA, a certificate is issued and directly after that, B calls on its
members to engage in a strike. Employer X is a brick manufacturer. The majority trade
union at X, trade union B, is also unhappy with the dismissal of the shop steward by
Z. Answer the following questions.
b. Advise the secretary general on the requirements they need to adhere to for a
protected strike.
(10)
c. Assume trade union B’s members engage in a strike. Advise Employer Z’s general
manager about the dismissal of employees engaged in a strike.
(10)
d. Assume Employer Z is not in the construction business but provides ambulance
services. Advise Z about the status of the strike.
(4)
e. Assume Employer Z concluded an agreement with trade union A to increase the
employee’s salary by 5%. They have also extended their collective agreement to
employees who are not members of trade union A. The secretary general of trade
union B approaches you for advice. Can they engage in a strike and why do you
say so?
(6)
f. Trade union A’s striking members are keen to arrange a picket. Advise the secretary
general in this regard.
(5)
g. Whilst trade union A’s members march to Church Square in the CBD, they damage
vehicles and shop windows. Two shop owners approach you for advice. Each one
of them has incurred R50 000 damages. What options to they have to recover their
damages?
(6)

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h. Whilst trade union A’s members are on strike, trade union B’s members continue to
tender their services. However, the production line has been disrupted and
Employer Z does not want them on his premises. Advise Employer Z.
(6)

Study Unit 10: Dispute Resolution

Discuss the different dispute-resolution mechanisms established by the
LRA:
• In many countries, labour disputes are resolved by specialist institutions.
• The main reasons for the establishment of specialist dispute resolution structures
include the need for expeditious, efficient and affordable procedures, and easily
accessible, specialist but informal institutions.
• The cornerstone of the LRA is the CCMA – an independent statutory body for
resolving labour disputes.
o Labour legislation places a premium on conciliation, and generally
speaking, all labour disputes must be referred to the CCMA for conciliation
before referral to the next stage of the dispute resolution process.
o Bargaining councils also play a central role in dispute resolution,
emphasising the philosophy of autonomy and self-regulation within
organised sectors.
o The LRA also establishes specialist labour courts (the Labour Court and the
Labour Appeal Court) which are ring-fenced from the civil court system and
staffed by judges appointed with the concurrence of NEDLAC.
• It is imperative that labour disputes should be resolved efficiently, expeditiously
and inexpensively.
o One of the primary objectives of the LRA is to promote the ‘effective
resolution of labour disputes’.
• Therefore, the LRA establishes the following dispute-resolution mechanisms:
o The CCMA;
o Bargaining councils;
o The Labour Court; and
o The Labour Appeal Court.
What is a ‘dispute’?
• S 213 of the LRA does not define a ‘dispute’ in any substantive sense.
o It simply states that a ‘dispute’ includes an ‘alleged dispute’.
• The Labour Appeal Court has noted that a dispute requires, at minimum, a
difference in opinion about a question.
• Although it is often suggested that the LRA distinguishes between ‘disputes of right’
and ‘disputes of interest’, it does not distinguish between different types of disputes
in those terms.
o ‘Disputes of right’ are those about the application of existing rights.
o ‘Disputes of interest’ are those about the creation of new rights.
• The primary concept at work in the LRA is that of a dispute about a ‘matter of
mutual interest’ between employers (and/or their collective organisations) and
employees (and/or trade unions).

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o ‘Matters of mutual interest’ are not defined in the LRA.

o However, the courts have interpreted the phrase ‘matter of mutual interest’
widely and is arguably best thought of as a matter that arises in the context
of the employment relationship.
o The Constitutional Court observed that the term ‘mutual interest’ serves to
define the legitimate scope of matters that may form the subject of collective
agreements, matters which may be referred to the statutory dispute-
resolution mechanisms and matters which may legitimately form the subject
of a strike or lock-out.
o The phrase ‘matters of mutual interest’ is broad enough to encompass both
disputes of right and disputes of interest.
▪ BUT: Do not equate matters of mutual interest with interest disputes.
o The LRA distinguishes 3 sub-categories of disputes within the broader
category of disputes about matters of mutual interest:
1) Arbitrable disputes;
• Disputes that must be arbitrated by the CCMA or a bargaining
council having jurisdiction.
• These are relatively uncomplicated disputes.
• E.G. Individual unfair dismissal and unfair labour practice
disputes.
2) Justiciable disputes; and
• Disputes that must be adjudicated by the Labour Court.
• These are more complex disputes.
• E.G. Automatically unfair dismissals, unfair discrimination,
unfair retrenchment and disputes regarding the exercise of
rights of freedom of association.
3) Disputes that must be resolved by the exercise of economic
power.
• Disputes in respect of which parties can resort to industrial
action, by way of a strike or lock-out, in support of their
demands.
• These are disputes about matters of mutual interest that are
neither arbitrable nor justiciable.
o The classification of a dispute as one concerning a matter of mutual
interest, and the further classification of the dispute as arbitrable, justiciable
or the subject of economic power, is not only an academic exercise.
▪ The classification of a dispute determines whether the dispute may
be referred to the statutory dispute resolution processes at all and, if
it may, what options are available to the referring party.
▪ Since there is no single dispute resolution body for all labour
disputes, it is essential for any party to a labour dispute to choose
the forum that has jurisdiction over the particular dispute.
• The statutory dispute resolution process requires that all disputes first be referred
to the CCMA or a bargaining council for conciliation.

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o Only after a failed attempt at conciliation, or the expiry of the time limits
prescribed for conciliation, may disputants opt for the next level of dispute
resolution.
The CCMA:
• The main functions of the CCMA are:
o To conciliate disputes referred to the CCMA in terms of the LRA;
o If the dispute remains unresolved, to arbitrate the dispute if the
applicable legislation so requires, or by the consent of the parties;
o To assist in the establishment of workplace forums; and
o To compile and publish information and statistics about its activities.
• Unfortunately for losing parties, there is no right of appeal against a final decision
of the CCMA.
o However, there are review mechanisms contained in S 145 of the LRA
which enable an aggrieved party to review the conduct of the arbitrator
in making an arbitration award.
o Note: These proceedings ought not to be perceived as an appeal,
because they are initiated based on an alleged defect with a
commissioner or arbitrator’s ruling.
The Labour Court:
• The Labour Court is a specialist labour court with the same status as a division of
the High Court and the Supreme Court of Appeal respectively.
• The Labour Court comprises a Judge President, a Deputy Judge President and
as many judges as the President considers necessary.
• The Labour Court is a single court with national jurisdiction.
o Its seat is in Braamfontein, Johannesburg and the court has premises in
Cape Town, Durban and Port Elizabeth.
• The Labour Court has exclusive jurisdiction in respect of all matters that are to be
determined by the court, either in terms of the LRA or in terms of any other law.
• A Labour Court case is a formal court proceeding.
o The Judge will hear evidence from both sides and make a judgment i.e.
Adjudication proceedings.
• S 158 of the LRA empowers the Labour Court to make ‘any appropriate order’
including:
o An order for urgent interim relief;
o An interdict;
o An order of specific performance;
o A declaratory order;
o An award of compensation;
o An award of damages; and
o An order for costs.
• Review of arbitration awards:
o There are two categories of defects in arbitration proceedings that are
reviewable by the Labour Court in terms of the LRA:
▪ First, arbitration awards of the CCMA may be reviewed in terms
of S 145; and

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• S 145(2) describes the ‘defects’ that are reviewable are

and covers the situations where the commissioner:
o Committed misconduct with regard to the duties of
a commissioner as arbitrator;
▪ Examples of arbitrator misconduct are, inter
alia, bias, aggressive interrogation of
witnesses, improper analysis of evidence,
ignoring of evidence, failure to apply their
mind, misconstruing of evidence and failure
to consider statutory authority.
o Committed a gross irregularity in the conduct of the
arbitration proceedings; or
o Exceeded their powers as arbitrator.
• The fourth ground for review pertains to the situation where
a party to the dispute has improperly obtained the award.
• Note: Parties are not entitled to appeal a decision of the
CCMA and the only option is judicial review.
• Carephone (Pty) Ltd v Marcus NO (1998):
o With regard to the grounds of review of arbitration
awards, the Court categorised the CCMA as an
organ of state that exercises public powers and
functions when it resolves disputes in terms of the
LRA.
o The important implication of this ruling is that the Bill
of Rights and the constitutional right to fair
administrative action bind the CCMA when
performing its dispute resolution functions.
o The constitutional right to fair administrative action
has broadened the scope of judicial review in
respect of arbitration awards in as far as an element
of ‘rationality’ or ‘justifiability’ must be present
• Rustenburg Platinum Mines Ltd (Rustenburg Section) v
CCMA & Others (2006):
▪ The following question was resolved by the
Constitutional Court, in casu: How does the
PAJA impact on the Labour Court’s review
jurisdiction, if at all?
• The PAJA has changed the
administrative law landscape.
• Its purpose is to ‘give effect to the right
to administrative action that is lawful,
reasonable and procedurally fair…as
contemplated in S 33 of the
Constitution’.
• However, for the PAJA to have any
relevance to the Labour Court’s

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powers to review arbitration awards

made by CCMA commissioners, two
conditions must be satisfied:
1) Rendering an arbitration award
must constitute administrative
action; and
2) The PAJA must be read into those
provisions of the LRA that
establish the nature and extent of
the right of review, especially in S
145.
o Supreme Court of Appeal:
▪ The SCA held that CCMA arbitration awards
constitute administrative action and, as such,
that they are reviewable in terms of the
PAJA, and that the PAJA overrides the more
limited provisions of S 145 of the LRA.
o Constitutional Court:
▪ The Constitutional Court upheld an appeal
against the SCA’s judgment.
▪ The majority of the Constitutional Court
found that arbitration by a CCMA
commissioner is administrative action within
the meaning of S 33 of the Constitution.
▪ However, the court held that the PAJA does
not apply to reviews under S 145(2) of the
LRA.
• Therefore, although CCMA awards
amount to administrative action,
PAJA does not apply.
▪ S 145 is a specialised provision that trumps
the more generalised provisions of the PAJA
i.e. Subsidiarity principle.
▪ Secondly, any other functions performed in terms of the LRA may
be reviewed in terms of S 158(1)(g).
• A party may apply for leave to appeal against any final order or final judgment of
the Labour Court.
o If leave to appeal is refused, the applicant may petition the Labour Appeal
Court.
The Labour Appeal Court:
• The Labour Appeal Court comprises a Judge President, a Deputy Judge President
and the number of judges drawn from the High Court and Labour Court that is
necessary to ensure the effective functioning of the court.
• The Labour Appeal Court has national jurisdiction and may perform its functions
anywhere in the Republic.
• The Labour Appeal Court may:
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o Receive further evidence;

o Remit the matter to the Labour Court with instructions; or
o Confirm, amend or set aside the judgment or order that is the subject of the
appeal.
• Judgments of the Labour Appeal Court are binding on the Labour Court.
• S 183 of the LRA provides that: ‘subject to the Constitution and despite any other
law’ no further right of appeal lies from the Labour Appeal Court.
o Therefore, subject to the Constitution, the Labour Appeal Court may hear
and determine all appeals against the final judgments and orders of the
Labour Court and may decide any question of law that is reserved for it to
decide.
o The Labour Appeal Court initially adopted the view that there was no right
of appeal from the Labour Appeal Court to the SCA.
▪ Initially, this view was not sustained. The SCA and the Constitutional
Court have affirmed that, on the basis of S 168 of the Constitution,
the SCA is the highest court of appeal except in constitutional
matters.
▪ In the Constitution Seventeenth Amendment Act of 2012, S 168(3) of
the Constitution was amended to provide that the SCA ‘may decide
appeals in any matter arising from the High Court of South Africa or
a court of a status similar to that of the High Court of South Africa,
except in respect of labour matters or competition matters to such
extent as may be determined by an Act of Parliament’.
▪ S 168(3)(a) of the Constitution was also amended to provide that the
SCA may decide appeals in matters arising from the High Court or a
court of similar status unless an Act of Parliament provides otherwise.
• The effect of these amendments is to restore the intention
reflected in S 162 of the LRA that the Labour Appeal Court is
the final court of appeal in respect of matters arising from the
Labour Court, other than constitutional matters.
• Therefore, there is no appeal from the Labour Appeal Court to
the SCA.
o Note: The Constitutional Court has jurisdiction to hear appeals from the
Labour Appeal Court.
▪ In theory, although the Constitutional Court is entitled to hear appeals
directly from the Labour Court, it will not generally do so unless the
matter has been heard by the Labour Appeal Court.
Distinguish between conciliation, arbitration, con-arb, pre-dismissal
arbitration and adjudication by the Labour Court:
• Conciliation:
o Conciliation is an intervention by an independent third party, who assists
parties to a dispute to arrive at a mutually agreed outcome.
o The conciliator assists parties to reach their own agreement and makes
no binding determination on them.

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o Proceedings are private, confidential and conducted on a without-

prejudice basis.
o A referral to conciliation is a jurisdictional precondition.
▪ The Constitutional Court affirmed that a failure to refer an unfair
dismissal dispute to conciliation had the consequence that the
Labour Court had no jurisdiction to determine the dispute.
o Legal representation is not permitted at conciliation proceedings.
o Referral of disputes to the CCMA:
▪ Unfair dismissal disputes:
• Referred to the CCMA within 30 days of the date of the
dismissal, or within 30 days of the employer’s making a
final decision about the dismissal.
▪ Unfair labour practice disputes:
• Referred to the CCMA within 90 days of the act or omission
that allegedly constituted the unfair labour practice.
▪ Disputes concerning unfair discrimination under the EEA:
• Referred to the CCMA within 6 months after the act or
omission that allegedly constitutes unfair discrimination
occurred.
o The CCMA must appoint a commissioner to attempt to conciliate the
dispute within 30 days of the date the CCMA received the referral.
o The primary role of the commissioner is to assist the parties to resolve
the dispute themselves by devising a process that the commissioner
deems appropriate.
o If the dispute is settled, the agreement may be made an:
▪ Arbitration award; or
▪ Order of court.
o If a dispute is not resolved by conciliation, the commissioner is required
to issue a certificate of outcome recording that conciliation has failed.
▪ The issuing of the certificate triggers time limits that apply to
further steps in the dispute resolution process.
• Arbitration:
o Arbitration is a hearing de novo on the merits of the dispute.
▪ Reasons for the arbitrator’s decision must be provided and the
award must be reasonable in the sense that it must fall within a
band of decisions to which reasonable decision-makers could
come on the basis of the available material.
▪ The arbitrator acts as a judge to decide the disputes.
▪ Arbitration is usually used to settle disputes of right i.e. Disputes
about rights that already exist.
o The most significant arbitration functions of the CCMA relate to
unresolved unfair dismissal and unfair labour practice disputes, such as:
▪ Unfair dismissal of an employee relating to conduct or capacity;
▪ Unfair dismissal of an employee where the employee alleges that
the employer made continued employment intolerable;
▪ Employee does not know the reason for the dismissal;

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▪ An alleged unfair labour practice;

▪ Exercise of organisational rights; and
▪ Interpretation of those collective agreements that do not make
provision for dispute resolution procedures.
o Other labour legislation also confers arbitration functions on the CCMA:
▪ The BCEA provides that disputes about severance pay and
disputes that can be consolidated with unfair dismissal disputes
may be referred to the CCMA for conciliation and arbitration.
o The CCMA will only arbitrate a dispute if a commissioner has issued a
certificate stating that the dispute remains unresolved after conciliation.
o Subject to the discretion of the commissioner regarding the form of the
proceedings, a party to the dispute may:
▪ Give evidence;
▪ Call witnesses;
▪ Cross-examine the witnesses of the other party; and
▪ Address concluding arguments to the commissioner.
o It is possible for employers to utilise the services of the CCMA to conduct
an in-house inquiry (at the workplace) into allegations of misconduct or
incapacity.
▪ The arbitrator’s ruling has the status of an arbitration award i.e.
Not necessary to proceed to conciliation and arbitration.
▪ Therefore, there is no right of appeal against the funding, but the
finding may be taken on review to the Labour Court.
o Note: There is no appeal against an arbitration award.
▪ However, either party may request the Labour Court to review the
arbitrator’s decision, in terms of S 145 of the LRA.
• Con-arb:
o Con-arb is when, instead of scheduling the arbitration for a later date, its
held on the same day that conciliation fails in respect of dismissal and
unfair labour practice disputes.
▪ It also means that the parties have no time after the conciliation
meeting to prepare their arguments and evidence for the
arbitration.
o S 191(5A) of the LRA requires the CCMA or a bargaining council having
jurisdiction to commence arbitration immediately after certifying, after
conciliation, that the dispute remains unresolved, if the dispute concerns
the dismissal of an employee or any unfair labour practice for any reason
relating to probation.
o Other unfair dismissal or unfair labour practice disputes may be resolved
by con-arb, in the absence of an objection by any party to the dispute,
being dealt with in that manner.
• Pre-dismissal arbitration:
o S 188A of the LRA makes it possible to refer a dispute that involves a
dismissal to the CCMA or a bargaining council with jurisdiction, actually
occurs.
o This is an arbitration done at a stage where there is not yet a dismissal.

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o This process is intended to take the place of a disciplinary enquiry and

the subsequent arbitration, which is heard at the CCMA or a bargaining
council.
• Adjudication:
o Adjudication is a formal court judgment, that is legally binding on all
parties.
Are employees entitled to be represented by a legal representative during
conciliation and arbitration and are the limitations constitutional?
• Legal representation:
o A legal practitioner is defined as ‘any person admitted to practice as an
attorney or an advocate in the Republic.’
▪ Consultants, candidate attorneys, para-legal officers and officials
of unregistered trade unions and employers’ organisations do not
qualify as legal practitioners.
o The LRA places restrictions on the right to be represented during
conciliation and arbitration, because lawyers are at least perceived to
have the effect of making the process legalistic and expensive.
o Conciliation:
▪ During conciliation, the parties have no right to legal
representation, and they must appear in person or may be
represented by a trade union or employers’ organisation.
o Arbitration:
▪ During arbitration, the parties have the right to appear in person
or may be legally represented in respect of some, but not all
disputes.
▪ Despite the general right to be legally represented during
arbitration proceedings, the rules of the LRA contain certain
limitations to this right.
• If a dispute relates to unfair dismissal of an employee and
the reason for the dismissal concerns alleged misconduct
or incapacity, legal representatives are excluded from
arbitration proceedings.
• With these types of disputes, a party may only be
represented by a legal representative if the commissioner
and all parties consent thereto or the commissioner
decides that it would be unreasonable to expect, under the
circumstances, a particular party to appear without
representation.
• CCMA v Law Society of the Northern Provinces (Incorporated as the Law
Society of the Transvaal) (2013):
o The SCA dismissed a challenge to the constitutionality of rule 25(1)(c)
of the rules for the conduct of proceedings before the CCMA, limiting the
right to legal representation and held that the rule was sufficiently flexible
to permit legal representation in deserving cases.
Rule 25: Representation before the CCMA

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(1)
(a) In conciliation proceedings a party to the dispute may appear in person or be
represented only by:
(i) If the party is an employer, a director or employee of that party and, in
addition, if it is a close corporation, a member or employee of that close
corporation;
(ii) Any member of that party’s registered trade union or registered
employers’ organization or an office bearer or official as defined in the
Act;
(iii) If the party is a registered trade union, any member of that trade union
or any office bearer or official as defined in the Act and authorized to
represent that party; or
(iv) If the party is a registered employers’ organization, any director or
employee of an employer that is a member of that employers’
organization or any official or office bearer as defined in the Act and
authorised to represent that party.
(v) If a party is the department of labour, any employee or official of the
department of labour.
(b) Subject to paragraph (c), in any arbitration proceedings a party to the dispute
may appear in person or be represented only by:
(i) A legal practitioner;
(ii) A candidate attorney; or
(iii) An individual entitled to represent the party at conciliation proceedings
in terms of sub-rule (1)(a).
(c) If the dispute being arbitrated is referred in terms of SS 69(5), 73 or 73A of the
BCEA or is about the fairness of a dismissal and a party has alleged that the
reason for the dismissal relates to the employee’s conduct or capacity, a party
is not entitled to be represented by a legal practitioner or a candidate attorney
in the proceedings unless:
(i) The commissioner and all the other parties consent;
(ii) The commissioner concludes that it is unreasonable to expect a party
to deal with the dispute without legal representation, after considering:
(a) The nature of the questions of law raised by the dispute;
(b) The complexity of the dispute;
(c) The public interest; and
(d) The comparative ability of the opposing parties or their
representatives to deal with the dispute.
(d) In any facilitation of large scale retrenchments as contemplated in S 189A(3)
of the Act, a party may appear in person or be represented by:
(i) If the party is the employer, a director or employee of the party, and, if
a close corporation, a member or employee of that close corporation;
(ii) Any member of that party's registered trade union or employers’
organisation or office-bearer or official as defined in the Act and
authorised to represent the party.
(e) No representation by a legal practitioner or candidate attorney shall be allowed
in facilitations of large scale retrenchments as contemplated in S 189A(3).

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(f) No person representing a party in proceedings before the Commission in a

capacity contemplated in sub-rule (1)(a) or (b), other than a legal practitioner
or candidate attorney contemplated in sub-rule (1)(b)(i) and (ii), may charge
a fee or receive a financial benefit in consideration for agreeing to represent
that party.
(2) If the party to the dispute objects to the representation of another party to the
dispute or the commissioner suspects that the representative of a party does
not qualify in terms of this Rule, the commissioner must determine the issue.
(3) The commissioner may call upon the representative to establish why the
representative should be permitted to appear in terms of this Rule.
(4) A representative must tender any documents requested by the commissioner
for the purposes of sub-rule (3), including constitutions, payslips, contracts of
employment, documents and forms or recognition agreements and/or proof of
membership of a trade union or employers’ organization.
(5) Despite the provisions of sub-rule (1), a commissioner may exclude any person
who is representing a party in any proceedings on the basis that they are a
member of the same employers’ organization as an employer party, or a
member of an employers’ organization that is a party to proceedings, if the
commissioner, after enquiring into the matter and considering relevant
representations, believes that:
(a) The representative joined the employer’s organization for the purpose of
representing parties at the Commission; or
(b) The representative’s participation in the dispute resolution process:
(i) Would be contrary to the purpose of the Rule which is to promote
inexpensive and expeditious dispute resolution in a manner that is
equitable to all parties;
(ii) Is not in keeping with the objectives of the LRA; or
(iii) May have the consequence of unfairly disadvantaging another party
to the dispute.
(6) Despite the provisions of this Rule, but subject to the provisions of sub-rule
(1)(f), the commissioner may, on application brought in accordance with rule
31, allow a person not contemplated in sub-rule (1) to represent a party at
arbitration proceedings before the commission, after considering:
(a) Whether it is unreasonable to expect the applicant party to deal with the
dispute without representation, after considering the factors set out in sub-
Rule 1(c)(ii)(a) to (d);
(b) The reason why a person contemplated in Rule 25(1)(b) cannot represent
the applicant party, which includes affordability, if applicable;
(c) The ability of the proposed representative to meaningfully represent the
applicant;
(d) Whether the proposed representative is subject to the oversight and
discipline of a professional or statutory body;
(e) Whether the proposed representative will contribute to the fairness of the
proceedings and the expeditious resolution of the dispute;
(f) Prejudice to the other party; and
(g) Any other relevant factors.

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Class question: Study Unit 10

1. Explain the main functions of the CCMA and the Labour Court.

2. X was subjected to constructive dismissal. Explain whether X is entitled to a legal

representative during conciliation and arbitration.

3. Is it possible to appeal against a decision of the CCMA?

4. On what grounds can a review be lodged against a decision of the CCMA and is
the PAJA applicable to such reviews?

Compulsory Readings: Summaries

Study Unit 1: Cohen & Moodley “Achieving ‘decent work’ in South Africa”
2012 PER/PELJ 320-569
• The fundamental goal of the International Labour Organisation (ILO) is the
achievement of "decent and productive work for both women and men in
conditions of freedom, equity, security and human dignity”.
• “Decent work” refers to work that is not only a source of income, but also a
source of personal dignity, family stability, peace in the community and
economic growth that expands opportunities for productive jobs and
employment.
• The ILO has identified four strategic objectives of “decent work”:
1) The promotion of standards and rights at work, to ensure that workers'
constitutionally protected rights to dignity, equality and fair labour practices
amongst others are safeguarded by appropriate legal frameworks;
2) The promotion of employment creation and income opportunities, with the
goal being "not just the creation of jobs, but the creation of jobs of
acceptable quality”;
3) The provision and improvement of social protection and social security,
which is regarded as fundamental to the alleviation of poverty, inequality
and the burden of care responsibilities; and
4) The promotion of social dialogue and tripartism.
• South Africa’s work force is subject to both formal and informal relationships,
with the informal sector identified as the fastest-growing sector of our economy.
o High levels of unemployment and a weakened economy have given rise
to a growing informal sector and a
TRIPARTISM: Economic
concomitant increase in unacceptable corporatism based on tripartite
working conditions and exploitation. contracts of business, labour, and
o Constitutional rights have not filtered down state affiliations within the economy.
Each is to act as a social partner to
to the informal sector, which remains create economic policy through
cooperation, consultation,
vulnerable and unrepresented. negotiation, and compromise.
• The authors conclude that a compromise between
more and decent jobs might be necessary to overcome the barriers obstructing
the “decent work” objectives.
• Various factors are identified as undermining South Africa’s “decent work”
objectives, such as:

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o Informal employment
▪ Employment in precarious work situations with no written contract
and no work benefits.
o Increased reliance upon outsourcing and sub-contracting arrangements
▪ Contributes to an unregulated and insecure labour force.
o Gender inequalities
▪ Women employees face inequality and disadvantage in the
workplace, often experiencing glaring pay disparities, gender
stereotyping, maternity discrimination and difficulties in balancing
work and family life.
▪ African and Coloured females are disproportionally under-
represented at all senior levels and are the least promoted.
▪ Women employees remain over-represented in lower paid, less
secure and unskilled positions = “feminisation of poverty”.
• The authors identify five statistical indicators to measure progress made
towards the attainment of “decent work” objectives in South Africa, namely:
1) Employment opportunities
o Job creation is imperative to overcoming the “decent work deficit” in
South Africa.
o Employment opportunities ought to exist for all who are willing and
able to work.
o An important indicator of decent work is the extent to which a
country's population is employed.
o Several national policies and institutional structures have been
established, with the technical and policy support of the ILO, to
facilitate job creation:
▪ The Expanded Public Works Programme aims to create job
opportunities for the unemployed with focus on women, youth
and other vulnerable groups.
▪ Other national job creation initiatives include a national
training layoff scheme to minimise job losses arising out of the
global recession and a National Skills Development Strategy.
▪ The implementation of a youth wage subsidy, which aims to
subsidise a portion of the wages of workers aged 18 to 29
years for a period of up to two years, is currently under
discussion at NEDLAC.
2) Adequate earnings and productive work
o An adequate living wage is imperative for the attainment of “decent
work”.
o In South Africa wages and incomes remain highly unequal between
the informal and the formal economy, with poverty and inequality
assuming racial, gender and age dimensions.
▪ The income disparities that characterise the South African
labour market must be dismantled before “decent work”
objectives can be fulfilled.

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o In South Africa the gender wage gap is evident in all occupations

except domestic work.
▪ In all industries in the informal sector save for mining and
quarrying, confirmed that female earnings were well below the
earnings of male workers.
o There is a direct relationship between low wages and poverty,
therefore improving wages and conditions of employment is of crucial
importance in overcoming “decent work deficits”.
3) Stability and security of work
o Job security is regarded as a fundamental component of decent
work.
▪ Job loss involves not only the loss of income but has far-
reaching consequences for the dignity of employees and their
family and community stability.
▪ High levels of unemployment in South Africa imply that job
loss is likely to endure for a prolonged period.
▪ The constitutional guarantee of fair labour practices and
legislative protection against unfair dismissal, unfair labour
practices and unfair discrimination aims to protect the job
security of employees in formal and typical employment
relationships.
o Temporary employment services contribute significantly towards
externalisation and insecure working conditions.
▪ The temporary employment service's employees' terms and
conditions of employment are governed by the commercial
contract concluded between the temporary employment
service and its client and are inevitably reflective of the
completely skewed bargaining positions of the contracting
parties.
▪ It is the client that "determines the parameters of the
relationship and is dominant in the relationship”.
▪ The economic rationale for the utilisation of temporary
employment services is to circumvent the contractual nexus
between the client and the employee that would typically arise
in a standard employment relationship and allow the client to
bypass the gamut of statutory and contractual obligations,
leaving these employees in a vulnerable position.
o Outsourcing and sub-contracting arrangements that create ambiguity
as to the identity of the employer, the misuse of fixed-term contracts
of employment and the fraudulent use of cooperatives have
contributed to “decent work deficits” by depriving employees of
labour law protection and security of employment.
o The proposed amendments to the Labour Relations Act in the Labour
Relations Amendment Bill 2012 aim to regulate temporary
employment services, fixed-term employment contracts and
outsourcing arrangements in a bid to ensure decent work for all

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workers and operate as an important step towards the attainment of

“decent work” objectives.
4) Social protection
o As a fundamental aspect to the attainment of “decent work” and
poverty reduction, adequate social protection is necessary to provide
security against a variety of vulnerabilities.
o In most developing countries the focal point of social protection
policies is to ensure survival, relieve destitution and mitigate
livelihood risks.
o The needs of most people in developing countries can be placed into
three categories:
▪ Basic needs of access to adequate nutrition, access to clean
water, sanitation and shelter, primary health care, primary
education;
▪ Contingencies such as sickness, accident, the death of the
breadwinner, disability, old age and the needs of vulnerable
groups (orphaned or abandoned children and widows); and
▪ Natural disasters and civil conflicts that may result in the
destruction of property, livelihoods and sources of support.
o In South Africa the right to social security and assistance is
constitutionally mandated and in furtherance of this several
legislative measures have been passed to regulate social insurance
and assistance.
▪ Despite this there is no comprehensive social security system
and the provision of healthcare and retirement benefits is
piecemeal and has been largely limited to employees in formal
employment.
▪ Moreover, in spite of government's undertaking to prioritise the
extension of social protection and security to both formal and
informal employees, the social security system as it stands
remains "fragmented and does not provide adequate
coverage to ensure the protection of the economically active
population”.
5) Social dialogue and workplace relations
o Effective social dialogue between government, employers and trade
unions is required to secure the equitable participation of all
employees (formal and informal) in decent and productive work”.
o The ability of workers to organise freely in order to collectively defend
their interests, as guaranteed by the Constitution and labour
legislation, is vital to equitable workplace relations and effective
social dialogue.
o A significant aspect of decent work is the extent to which workers can
express themselves on work-related matters and participate in the
regulation of their working conditions.
o An indicator of effective social dialogue is trade union density rate
within a country.

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▪ Despite a rapidly expanding informal employment sector,

workers in the informal sector remain outside the net of trade
unions and continue to be unorganised and vulnerable.
• In 2010, the OECD Economic Survey of South Africa cautioned that an
increased focus on “decent work” could be counterproductive to job creation
and recommended:
1) Increasing employment rates by implementing reforms to wage
determinations; improving school-to-job transition and addressing lacunas
in employment protection regulations;
2) Reforming the regulatory environment by reducing entry barriers and
increasing the scope for competition; and
3) expanding job-search assistance and upgrading public job centres,
including creating better linkages to job-seeker databases; and
implementing sectoral minimum wages which are differentiated by age in
order to ensure that the youth break into the job market.
Study Unit 3: Van Eck BPS and Nemusimbori E “Uber Drivers: Sad to Say,
but no Employees in SA” (2018) THRHR (Vol 3) 473- 483
• This article addresses the question of whether Uber drivers are employees of
Uber SA, for purposes of labour law.
• The Labour Court in Uber South Africa Technology Services v National Union
of Public Service and Allied Workers held that Uber drivers are not employees
of Uber SA.
• The authors advance arguments criticising the Labour Court’s decision,
illustrating that they ought to have found that Uber drivers are employees of
Uber SA.
o The Labour Court should have reflected on international developments:
▪ Section 39(1)(b)-(c) makes it clear that when interpreting the Bill
of Rights, a court must consider international law.
▪ Although the national circumstances may be diverse,
international law should still serve as a useful interpretive aid.
▪ After having recognised the fact that not all legal institutions are
in fact comparable j(Fose case), the authors also argued that
there could hardly be a better example of an instance where legal
institutions are so similar that it could go without comparison.
▪ The court overlooked developments by the courts in the USA and
England.
• The courts in the USA and England are prepared to go
beyond arguments that rely on the mere existence of a
contractual relationship between Uber and its drivers,
which may be more fitting in the new technological era of
the platform economy.
▪ Moreover, the court did not provide any reasons as to why it did
not consider international rulings in this regard.
o The Labour Court should have considered the definition of ‘employer in
terms of S 200B of the LRA:

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▪Scholarly arguments recommend moving away from looking at

who the employer is to rather looking at who the employee is.
▪ The Labour Court could have taken a leaf out of the Mdlalose
decision where the court was prepared to pierce the veil and
accept that the two entities were in fact “joint or co-employers”.
▪ It is highly probable that the agreements between drivers and
Uber BV and Uber SA agreements were crafted in such a way as
to specifically circumvent employer responsibilities as far as
possible.
▪ S 200B of the LRA also provides for joint and several liability
regarding employer obligations when simulated corporate
structures are established.
▪ Uber BV formed a subsidiary in the form of Uber SA and the two
entities should not be separated from joint liability in dealings with
Uber drivers.
o The Labour Court ought to have followed a broader constitutional
approach, rather than a narrow contract-based approach:
▪ The Labour Court missed a golden opportunity to establish a new
framework for debate pertaining to employees engaged in the gig-
economy.
▪ Following other landmark cases (SANDU I, II & III, ‘Kylie’, SITA
and Discovery Health), there has been a trend towards expanding
rather than narrowing the scope of application of labour protection
to workers operating in the grey areas of the formal employment
relationship.
▪ The authors are surprised by the Labour Court’s reliance on the
formal contractual agreement as a prerequisite for invoking labour
law protection.
Study Unit 3: Du Toit “Platform Work and Social Justice” (2019) ILJ 1-11
• Introduction:
o As the law stands, platform workers may remain marginalised even if
they are classified as employees.
o Apart from minimum conditions of employment, assuming that these are
enforceable, existing labour rights hardly address the situation of
platform workers.
o With a few exceptions, employees in the platform economy are likely to
remain in the weakest of bargaining positions with little choice but to
submit to unfair arrangements that disproportionately benefit clients and
platform operators.
o More comprehensive measures, which go beyond the paradigm of
employee protection, are needed for promoting decent work in the
commercial sector.
o Distinguishes between the commercial and collective sectors:
▪ Commercial sector:
• This refers to commercial or privately-owned platforms.
o Dominant sector.

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▪ Collective sector:
• This refers to collectively-owned platforms.
o Marginal sector.
• The author presents three solutions to provide platform workers with improved
social protection:
o Regulating the commercial sector:
▪ The author proposes an alternative approach based on the
principle that there are fundamental rights that all workers should
enjoy, regardless of their contractual status.
▪ Inclusivity and decentralisation, involving negotiated rulemaking
by stake holders in different environments has been proposed as
an alternative.
▪ This could be perceived as suggesting a new model of collective
bargaining involving all relevant stakeholders rather than trade
unions and employers only.
▪ The bottom line is that the need for agreement with workers
and/or their organisations offer a strong basis for promoting social
justice and, by reducing exploitation, narrowing the gap between
the commercial and collective sectors.
o Transcending the commercial sector:
▪ Collective decision-making can be effective where participants
are directly involved in the relevant activity and share enough
knowledge of its operation as a basis for informed decisions.
▪ Worker control can be a form of direct democracy, a concept that
has not enjoyed much credibility of late.
▪ Cooperatives could clear a path toward efficient and convenient
use of technology for consumers that simultaneously incorporate
fair labour standards.
▪ The collective sector is driven by sustainability rather than
maximum profitability, which in turn allows more room for
innovation which the commercial sector might not find attractive.
o Convergence:
▪ Progressive transformation of the commercial sector could
narrow the gap and begin to emphasise commonalities, in
particular the objectives of social justice embodied in the
development of the collective sector and the quest of workers’
rights.
▪ It may be possible to, overtime, see a blurring of the distinction
between the commercial and collective platforms and the
emergence of hybrid forms incorporating sustainable features of
both.
▪ The establishment of basic rights for all workers in the commercial
sector would be a major step towards greater inclusivity and
worker voice in the platform economy as a whole.

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▪ This type of inclusivity would give broader scope to the relative

freedom of innovation and the advantages of collective problem
solving that worker-owned platforms embody on a limited scale.
Study Unit 3: Global Commission on the Future of Work: Work for a
Brighter Future (2019) p 5 and Executive Summary pp10-14
• The relevant parts of this article are contained in-text and do not bear repeating.
Study Unit 4: Behari “The Effect of the Labour Laws Amendment Bill 2017
on Shared Parental Responsibilities” (2018) ILJ 2148
• Introduction:
o The current exclusive right to maternity leave for mothers with the
corresponding right to family responsibility leave for fathers is
unbalanced and creates a gendered conflict between work and care for
employees.
o Gendered assumptions lead to a conflict between the household and the
workplace roles of both women and men.
o As working parents endeavour to fulfil the dual roles of employee and
caregiver, an inevitable conflict arises between responsibilities as
caregiver and income earner.
o While gendered assumptions assign to women the role of principal carer,
they have also resulted in the poor social recognition of fathers as
caregivers.
o More value is placed on the men’s role as breadwinners than as fathers.
▪ Thus, men are unable to achieve full recognition of their role as
fathers owing to the gendered assumption that their principal role
is as the breadwinner of the family.
• Parental leave: How much leave for fathers?
o The Labour Law Amendment Bill is clear in its objective to insert
parental, adoption, and commissioning parental leave entitlements for
employees into the BCEA, and reciprocal leave benefits into the UIA.
o Thus, the amendments do not propose merely amending the entitlement
to paternity leave but focus on gender neutral leave entitlements.
o The Bill inserts S 25A into the BCEA to provide for the right to parental
leave.
o According to the Bill, the section will now include an additional prohibition
against the reduction of parental leave, adoption leave and
commissioning parental leave by collective agreement.
o In terms of the Bill, the proposed S 25A(1) to be inserted into the BCEA
states that an employee who is the parent of a child is entitled to at least
ten (10) consecutive days of parental leave.
▪ Parental leave is a gender-neutral provision which offers both
parents the time off to care for and bond with young children.
▪ Parental leave is different from paternity leave, as paternity leave
exclusively applies to fathers to provide them with time off from
work to care and bond with the new-born baby and to care for the
mother of the baby during the post-natal period.

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Study Unit 5: Rycroft “Inherent Requirements of the Job” 2015 36 ILJ 900
• This article was written in light of a previous decision taken by the Labour Appeal
Court regarding whether it was an inherent requirement of the job of a municipal
police sergeant to hold a code 15 motorcycle licence.
o Ethekwini Metropolitan Municipality: Durban Metropolitan Police Services v
Khanya and Others (2014):
▪ A disabled applicant and female applicants challenged the fairness
of this requirement for promotion to the rank of sergeant.
• Disabled applicant challenged this requirement because it
was an absolute block on future promotion.
• Female applicants challenged this requirement because some
women find it difficult to deal with a heavy motorcycle.
▪ In casu, the Labour Appeal Court held that it was an employer’s
prerogative to set the standard for its employees and a code 15
motorcycle licence for the post of sergeant was an essential
requirement.
▪ Therefore, it could not amount to an unfair labour practice, nor could
it be aimed at excluding female candidates.
• Rycroft’s article aims to consider whether the Labour Appeal Court failed to
interrogate the meaning of ‘inherent requirements of the job.’
o He concludes that the Labour Appeal Court appears to have failed to
correctly interrogate the meaning of ‘inherent requirement’ in light of other
decided cases.
o It cannot be right that one requirement which affects a small part of a job
can be regarded as an ‘inherent requirement’ if it indirectly discriminates
against disabled persons and women.
o While colour blindness is understandably an absolute obstacle for an airline
pilot, this is not the same as a capacity (such as a code 15 motorcycle
licence) for a job with many and different aspects, such as a sergeant in a
municipal police force.
• An employer is protected in three situations by the phrase ‘inherent requirements
of the job’:
o Where an apparently discriminatory dismissal may be fair if the reason for
the dismissal is based on an inherent requirement of the particular job;
o Where it is provided that it is not unfair discrimination to distinguish, exclude
or prefer any person on the basis of an inherent requirement of a job; and
o Where medical testing, which is generally prohibited, may be justifiable in
the light of the inherent requirements of a job.
▪ These situations act as a form of statutory defence to accusations of
discrimination.
▪ However, there is a suggestion that ‘inherent requirements’ are not
defences, but rather justified or deemed fair practices:
• Article 2(1) of the ILO Convention on Discrimination in
Respect of Employment and Occupation:

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o “Any distinction, exclusion or preference in respect of a

particular job based on the inherent requirements
thereof shall not be deemed to be discrimination.”
• ‘Inherent requirements’ may relate to the possession of a particular personal
physical characteristic which must be necessary for effectively carrying out the
duties attached to a particular position.
o Inherent requirements are those which cannot be removed from the job
without dramatically altering the nature of the job.
o Therefore, where the stated requirements do not meet this test, the
exclusion of persons from that job would amount to unfair discrimination.
• Different inherent requirements:
o Health
▪ Medical testing may be justifiable in the mining industry where the
link between work and health is an inherent requirement for the job.
o Dress code
▪ In one instance, the court held that the company’s ‘clean-shaven’ rule
was a justified inherent requirement for a job that required uniformity
and discipline.
▪ Therefore, it is possible that wearing a corporate uniform and
complying with a dress code could in certain circumstances be
regarded as an inherent requirement of the job.
o Age
▪ In one instance, the court was not convinced that any distinction or
preference against pilots above the age of 60 was based on the
inherent requirements of the job of a pilot and therefore, did constitute
unfair discrimination. ‘Fitness to fly’ should be considered an inherent
requirement of the job of a pilot, rather than an applicant’s age.
o Sexual orientation/gender
▪ In one case, a church argued that persons in leadership positions
cannot live in a homosexual relationship because it was an inherent
requirement that a spiritual leader must support church doctrine. The
court confirmed this position in relation to a minister but rejected it in
relation to a music teacher at the church.
• The court found that appointing a homosexual music teacher
would not have been devastating to the church.
▪ Where a male employed in a male-dominated industry undergoes a
sex-change operation, an employer cannot dismiss an employee by
alleging an ‘inherent requirement of the job.’
• In this instance, an employer entered an agreement with a
transsexual employee in the engineering industry to wear
male clothes when she consulted with clients. The court was
appalled at the employer and said that the fact that the
employee was asked to hide the fact that she was a
transsexual was unfair discrimination. The fact that she had
agreed to do so did not legitimise the unfair discrimination.

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• Therefore, adjudicators must interrogate very carefully whether or not the

requirement really is one essential for the effective fulfilment of the job description.
Study Unit 9: Van Eck “In the Name of ‘Workplace and Majoritarianism’:
Though Shalt not Strike ― Association of Mineworkers & Construction
Union v Chamber of Mines (2017) 38 ILJ 831 (CC) and National Union of
Metalworkers of SA & Others v Bader Bop (Pty) Ltd & Another (2003) 24
ILJ 305 (CC)” 2017 ILJ 1496-1510
• Introduction:
o The Constitutional Court has protected the right to strike, since the inception
of the final Constitution.
o In Ex parte Chairperson of the Constitutional Assembly: In re Certification
of the Constitution of the Republic of South Africa, 1996 the court confirmed
the significance of the constitutional right to strike.
o In NUMSA v Bader Bop (Pty) Ltd (2003), the court held that no matter how
low a particular trade union’s level of representativeness is, that union has
a right to strike in order to persuade an employer to grant workers non-
statutory organisational rights.
o In AMCU v Chamber of Mines (2017), the court adopted a literal
interpretation of the definition of ‘workplace’ and under the banner of
‘majoritarianism’, the court held that minority trade unions do not have a
right to strike where the dominant unions have concluded a collective
agreement that limits that right.
o Van Eck poses the question whether AMCU is compatible with Bader Bop
and whether it is appropriate to have a single definition of ‘workplace’ in the
LRA. Moreover, whether following the mantra of majoritarianism would not
thwart some of the goals of the LRA.
• AMCU: The facts, the law and the decision:
o The Chamber of Mines (an employers’ organisation formed by a number of
gold mining companies) negotiated a collective agreement between:
▪ Three employers; and
▪ NUM and UASA.
o Each employer company operates more than one mine in different parts of
South Africa.
o At some of these mines, AMCU has majority membership.
o However, in the mining sector overall, AMCU did not have the majority
membership at all the respective companies’ mines.
o AMCU was not party to the collective agreement that contained a ‘no-strike’
clause which spanned 2 years.
o AMCU did not agree with the annual wage increase and not being party to
the collective agreement, it gave notice to strike.
o The Labour Court granted an interdict against AMCU’s planned industrial
action regarding the dispute settled in terms of the collective agreement.
o The matter proceeded to the Constitutional Court where, at the heart of the
issue, the question was whether AMCU’s right to strike was legitimately

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restricted by the collective agreement that was concluded with the majority
trade unions and to which AMCU was not a party.
o The Court considered the following:
▪ S 23(1) of the LRA pertaining to the binding effect of collective
agreements on parties to such agreements and their members.
However, subsection (d) provides that a collective agreement also
binds employees who are not members of the signatory unions if:
• The employees are identified in the agreement;
• The agreement expressly binds the employees; and
• That trade union or those trade unions (that are party to the
collective agreement) have as their members, the majority of
employees employed by the employer in the workplace.
o This provision ties the majoritarian principle to the
notion of ‘workplace’.
▪ S 213 of the LRA pertaining to the definition of ‘workplace’ which
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
employees work in connection with each independent
operation constitute the workplace for that operation.”
o The Chamber of Mines relied on two main points which precluded members
of AMCU from engaging in the strike:
▪ Firstly, it argued that the signatory trade unions constituted a majority
at the workplace and, in terms of S 23(1)(d), minority trade unions
were bound by the agreement that contained a peace clause.
▪ Secondly, it contended that this provision must be read in conjunction
with S 65(1)(a) of the LRA which prohibits an employee from
participating in a strike if they are bound by a collective agreement
that regulates the issue in dispute.
o AMCU raised 3 main arguments:
▪ S 23(1)(d) was constitutionally invalid insofar as it infringed every
worker’s right to strike;
▪ The term ‘workplace’ should be accorded a broad interpretation
which means that each of the mines is a separate workplace, rather
than all of an employer’s operations taken together; and
▪ The agreement should have been extended by means of S 32 of the
LRA which deals with the extension of bargaining council
agreements and contains additional safeguards.
• AMCU further contended that the Chamber of Mines had, in
effect, circumvented S 32 by extending the agreement to non-
parties by means of S 23(1)(d).
o The Court rejected AMCU’s first argument and held that although S 23 has
the effect of limiting the fundamental right to strike, such limitation is
justifiable.

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▪ “…the best justification for the limitation the principle imposes is that
majoritarianism, in this context, benefits orderly collective
bargaining.”
▪ The Court accepted that it is internationally recognised that
majoritarianism is functional to enhanced collective bargaining.
However, the Court did not consider whether South Africa has, in
fact, adopted an exclusive majoritarian approach, which has the
effect that the right to strike is a collective right which belongs to
unions, or whether it remains an individual right which is exercised
collectively.
• The Constitution conceives the right to strike as an individual
right.
▪ As opposed to Bader Bop, wherein the Court delved into the
importance of the right to strike as a point of departure, it considered
the definition of ‘workplace’ and relied on majoritarianism to
determine whether any limitations were justifiable.
o On the issue of interpretation of the definition of ‘workplace’, the Court
accepted that it is not a purely factual enquiry, but nonetheless held that
there was no reason in constitutional principle, legal analysis or factual
assessment to overturn the findings of the Labour Court and the Labour
Appeal Court.
▪ The Court held that the definition that the LRA accords to ‘workplace’
is something different from its ordinary meaning.
▪ The words ‘the place or places where the employees of an employer
work’ refer not to the physical place where a single employee works
but include all the places where the employer’s employees
collectively work i.e. Relative immateriality of location.
▪ The words ‘the place or places where employees work in connection
with each independent operation constitute the workplace for that
operation’ constitute a proviso to the definition, refer to the
independence of the organisation by reason of its functionality, rather
than physical individuality.
▪ The Court accepted the findings of both the Labour Court and the
Labour Appeal Court that the individual mining houses operated in
an integral fashion, thereby constituting a single workplace.
o In relation to AMCU’s final argument, the Court rejected the contention that
the extension of the agreement should not have occurred under S 23(1)(d)
but under S 32 with its sectoral characteristic and safeguards.
▪ Despite AMCU’s concerns about lack of protection under S 23(1)(d),
it has its own inherent safeguards in the form of the principle of
legality and concomitant review mechanisms.
o The Court concluded that the interdict against AMCU was valid and that the
order’s restriction on the right to strike was both reasonable and justifiable
within the collective bargaining framework established by the LRA.
• Bader Bop: The facts, the law and the decision:

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o The Court in Bader Bop grappled with issues of pluralism and limitations on
the right to strike.
o In casu, members of a non-recognised minority union sought to enforce
organisational rights by means of a strike, despite the fact that the LRA does
not accord such rights to minority unions.
o The Court, contrary to the approach in AMCU, leaned towards pluralism and
the recognition of the fact that minority trade unions’ right to strike should
not be readily restricted if this can be prevented by an alternative
interpretation of the LRA.
o Bader Bop manufactured leather products for the automobile industry and
at the time, the company employed approximately 1000 employees outside
Pretoria.
▪ The General Industrial Workers Union of South Africa (GIWUSA)
represented the majority of Bader Bop’s workers and enjoyed all of
the organisational rights.
▪ S 11 of the LRA provides that representative trade unions that are
‘sufficiently representative of the employees employed by an
employer in a workplace’ may claim one or more of the following
organisational rights, namely: trade union access to an employer’s
premises (S 12); the deduction of trade union subscriptions from their
members’ pay (S 13); and reasonable time-off for trade union officials
in order to perform their functions of office (S 15).
▪ Therefore, insofar as the granting of organisational rights is
concerned, the LRA endorses a pluralist rather than a strict
majoritarian approach.
o In Bader Bop, NUMSA represented only approximately 26% of the workers
at the employer’s workplace.
▪ Nonetheless, it claimed, amongst others, the right to elect shop
stewards.
▪ Although Bader Bop was willing to accord NUMSA access to its
premises and shop-order facilities, it was not willing to recognise the
union’s shop stewards.
o NUMSA declared a dispute at the CCMA over the acquisition of
organisational rights and informed Bader Bop that it intended to commence
with strike action.
o Bader Bop contended that NUMSA could not strike because it was not
entitled to claim the organisational rights in question, in terms of the LRA.
o NUMSA argued that, in any event, it had the option of referring a dispute to
the CCMA in terms of the S 21 procedure.
▪ This tailor-made arbitration process seeks to minimise the
proliferation of trade unions in a single workplace, by taking into
account factors such as organisational history and the composition
of the workforce (SACTWU v Marley (SA) (Pty) Ltd (2000)).
o Bader Bop sought an interdict against NUMSA’s call for a strike.
o In its appeal to the Constitutional Court, NUMSA contended that either the
provisions of the LRA which limit the right of minority trade unions to strike

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were unconstitutional, or in the alternative, that the court should interpret S

65(1)(c) and S 65(2) of the LRA in such a way that the fundamental right to
strike was not infringed.
o The Court held that there was no explicit prohibition against minority trade
unions engaging in strikes to gain non-statutory organisational rights and
that the right to strike should be protected as far as possible.
▪ The Court considered the fact that minority trade unions do not have
any entitlement to organisational rights and weighed this against the
ILO principles pertaining to the right to freedom of association and
the right to strike.
▪ Despite the LRA’s well-ordered structure relating to the granting of
statutory organisational rights only to majority and sufficiently
representative trade unions, the Court overturned the decision of the
Labour Appeal Court which had confirmed the interdict.
o Furthermore, the Court posed the question whether the LRA is capable of
an interpretation that avoids limiting constitutional rights.
▪ Stated differently, should there be any conceivable way of
interpreting the LRA so that it does not limit the right to strike, that
would be the Court’s preferred interpretation.
o Considering AMCU in light of Bader Bop, Van Eck leaves open the question
whether the Court in AMCU went far enough in seeking to interpret the LRA
in such a way so as not to place an unreasonable limit on the right to strike.
• Theoretical underpinnings of the right to organise and the right to collective
bargaining:
o The right to engage in collective bargaining is one of the most effective
means of promoting a more equal balance between employers and
employees.
o The right to freedom of association and the right to organise form the
cornerstones of collective bargaining.
▪ This is recognised by two of the ILO’s core conventions:
• The Convention on Freedom of Association and the Right to
Organise; and
• The Convention on the Right to Organise and Collective
Bargaining.
o The right to organise is central to both of these
conventions.
▪ Freedom of association relates to any person’s right to decide
whether they wish to join (or not to join) a collective, whether it be a
political party, sports club, trade union or a religious or social
organisation.
o In South Africa, the core collective labour rights constitute human rights.
▪ The Constitution confers on every worker the individual rights to:
• Freedom of association (S 18);
• To organise (S 23(2) and (4));
• To engage in collective bargaining (S 23(5)); and
• To strike (S 23(2)(c)).

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▪ Although all of these rights are crafted as individual rights, the right
to strike can only be exercised collectively.
▪ It is significant that none of these constitutional rights require
representativeness before workers may claim them.
o Whether the right to strike could be construed as a collective right, which
can be signed away in a peace clause, or whether it is an individual right
which cannot be monopolised by a trade union which concludes the
collective agreement was not argued and considered by the court in either
Bader Bop or AMCU.
o The logical sequence for the establishment and functioning of a collective in
the world of work would be:
▪ To establish an association;
▪ To organise its activities and promote its growth; and
▪ To commence with collective bargaining.
• Trade unions do not start off as majority unions and they gain
members through serving the best interests of workers, and
not those of the government or the employer.
• A democratic labour law framework would make it possible for
new trade unions to unseat ineffective, established unions.
• Van Eck submits that if such a logical flow is not allowed, it
could lead to frustration amongst workers who may seek
mechanisms outside the legislative framework to gain traction
at the workplace.
o However, in line with South Africa’s pro-majoritarian approach, thresholds
of representativeness have been coupled to some, but not all the
constitutional labour rights.
▪ For the most part, the LRA discourages the proliferation of trade
unions.
▪ Van Eck accepts that during power play, workers’ strength lies in
unity.
▪ However, he submits that a blind following of majoritarianism,
combined with the effects of threshold agreements and the extension
of collective agreements, could severely impede the rights to
freedom of association and the right to organise, that precede the
process of collective bargaining.
o Chapter II of the LRA (Freedom of Association and General Protections)
gives effect to the constitutional right to associate.
▪ This part of the LRA, which confers on every worker and employer
the right to participate in forming and joining trade unions or
employers’ organisations respectively, does not
• Similarities and differences between the cases:
o Similarities:
▪ Both cases dealt with situations where an employer sought to
interdict a minority trade union from relying on the right to strike.
▪ In both instances, it was argued on behalf of the minority unions that
either the LRA should be interpreted in such a way that workers’

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constitutional right to strike should not be limited, or in the alternative,

that the provisions that limit the right to strike should be held to be
unconstitutional.
o Differences:
▪ The court in Bader Bop interpreted the LRA in such a manner that
the right to strike would not be limited while in AMCU, the court held
that the LRA could not be interpreted in any other way but to limit the
minority trade union’s right to strike.
• This limitation was held to be justifiable against the
background of the goals of the LRA.
▪ The second difference lies in the approaches adopted by the
decisions pertaining to who ‘owns’ the right to strike, and the notions
of pluralism and majoritarianism.
• In AMCU, the court wholeheartedly endorsed the notion of
majoritarianism.
o The court endorsed the principle that the right to strike
(and the right to waive it) belongs to the majority trade
union that can conclude and extend collective
agreements that bind minority unions.
▪ The third difference lies in the fact that the dispute which gave rise to
the strike in Bader Bop concerned the right to organise and the
acquisition of organisational rights. This is different from the dispute
in AMCU that concerned a wage dispute and the extension of a
collective agreement to workers who did not belong to the majority
union.
o The authors conclude that it would serve no purpose to ask whether the two
cases are compatible with one another because they dealt with two
completely separate issues.
▪ Moreover, there is no argument to be made that the court in AMCU
in any way contradicted Bader Bop because the way in which the
LRA currently reads leaves no doubt that with the particular facts
before the courts, AMCU was correctly precluded from engaging in a
lawful strike.
• Conclusion:
o Despite the conclusion that AMCU did not directly contradict Bader Bop, the
authors argue that the respective approaches adopted by the two court
decisions are not finely attuned to one another.
▪ Bader Bop left room for an interpretation in which the rights of
minority trade unions were recognised.
▪ AMCU endorsed majoritarianism in no uncertain terms.
• The authors acknowledge that the court cannot be faulted for
this because this is how policy makers have framed the LRA.
o However, the LRA with its policy choice of majoritarianism was enacted
more than 20 years ago, at a time when there was much more unity within
organised labour.

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▪Since then, new trade unions have come to the fore which has
significantly weakened coherence amongst organised labour.
o The court in AMCU came to its decision on majoritarianism at a time when
policy makers had amended the LRA to relax some of the harsh effects of
majoritarianism on minority unions in so far as the acquisition of
organisational rights is concerned.
o The authors suggest that this may be an opportune time for policy makers
to reconsider S 23(1)(d) and to add the necessary protection to minority
trade unions, and to craft a more varied definition for the term ‘workplace’ in
the private sector, following that in the public sector.
o The authors also argue that the courts have not yet sufficiently explored
whether threshold agreements and collective agreements that are extended
to minority trade unions by majority trade unions do in fact promote labour
peace at the workplace.
▪ The concern is that measures that promote majoritarianism may
increase, rather than defuse tensions within upcoming trade unions
to the point of encouraging conduct that falls beyond statutory
regulation and the rule of law.

Appendix 1
Employment Equity Act
Schedule 4
Annual Turnover Threshold – Revised January 2014
Industrial Sector OLD Total NEW Total
Annual Annual
Turnover Turnover
Agriculture R 2.00m R 6.00m
Mining and Quarrying R 7.50m R 22.50m
Manufacturing R 10.00m R 30.00m
Electricity, Gas and Water R 10.00m R 30.00m
Construction R 5.00m R 15.00m
Retail and Motor Trade and Repair Services R 15.00m R 45.00m
Wholesale Trade, Commercial Agents and R 25.00m R 75.00m
Allied Services
Catering, Accommodation and Other Trade R 5.00m R 15.00m
Transport, Storage and Communications R 10.00m R 30.00m
Finance and Business Services R 10.00m R 30.00m
Community, Social and Personal Services R 5.00m R 15.00m

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