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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on "Two issues in Strike law: Provocation by an employer leading to an unlawful strike, and the erroneous payment of wages to strikers". We also discuss three new cases: The first case considers the tension between unfair discrimination and the inherent requirements for a job. The second case, an SCA decision, looks at when an employer's omission in circumstances relating to its duty to protect an employer from harassment, may constitute negligence. In the third case, the Labour Court considers when it is fair to hold a second disciplinary hearing.

This public newsletter is a free edited version of the subscriber newsletter.

LEGISLATION UPDATE: The "two-pot" retirement system

The 2023 Draft Revenue Laws Amendment Bill and 2023 Draft Revenue Administration and Pension Laws Amendment Bill together provide the necessary legislative amendments required to implement the first phase of the "two-pot" retirement system, to be implemented from 1 March 2024. From then, one-third of any contributions made towards retirement savings will go into a "savings pot", and it will be possible to withdraw from this pot pre-retirement. The remaining two-thirds will go into a "retirement pot" to be accessed on retirement and not before.

For further reading on this, see -

Daily Maverick -

Fin24 -

BusinessTech -


Unfair discrimination and the inherent requirements for a job

In Gugwini v National Consumer Commissioner (JS 602/19) [2023] ZALCJHB 175 (6 June 2023) it was held that once a requirement of a job is determined to be inherent, then as a matter of law, it is not unfair discrimination for an employer to insist on employees meeting that requirement. An employer who proves that a requirement is inherent cannot be compelled to waive or excuse that inherent requirement to accommodate a person with disability.

The employee, a senior researcher in a position for which the ability to read and write was an inherent requirement, experienced difficulty with his eyesight and went for three operations. After being dismissed the employee approached the Labour Court claiming automatically unfair dismissal and unfair discrimination.

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When is an employer's omission negligent?

An educator was employed for many years by the Provincial Department of Education, KwaZulu-Natal. About 7 years before she would reach the usual compulsory retirement age of 65, she took early retirement. She alleged that she was compelled to do so because she suffered from clinical depression as a result of the failure of her employer to take any reasonable steps to prevent the principal of her school from victimising her over a long period. Without this harassment she alleged she would have worked until 65, and as a result, she was entitled to be compensated by her employer for the income she lost because she could not work for the last 7 years of her working life.

Our law provides for a claim in the High Court for compensation based on another party's wrongfulness or negligence, known as a delictual claim. The educator lodged a delictual claim against the Education Department in MEC for Education, KwaZulu-Natal v Singh (1188/2021) [2023] ZASCA 92 (9 June 2023), claiming her employer had failed to prevent her victimisation and harassment. The High Court granted judgment in favour of the employee for payment of just under R1.3 million, interest and costs, being the value of seven years' income.

On appeal the SCA confirmed that an employee relying on an omission by the employer must establish that circumstances were such that the employer came under a legal obligation to act positively to prevent the harm. The employee bears the onus to establish wrongfulness, causation and negligence.

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Holding a second disciplinary hearing

In SA Municipal Workers Union on behalf of Malatsi v SA Local Government Bargaining Council & others (JR 1211 / 2018) [2023] ZALCJHB 63; [2023] 6 BLLR 581 (LC) (13 March 2023) an employee was dismissed for failing to conduct himself with honesty and integrity, after fraud had exposed the Municipality to a potential loss of R 9,7 million. Evidence showed that several attempts were made from the employee's computer to access the cash focus internet portal to the employer's Absa bank account.

At arbitration the employee's case was that there was a culture of teamwork and as a result his colleagues could use his computer as much as he could use their computers. His password was written on the calendar on the computer desk, to be used by his colleagues and about ten of his colleagues knew his password.

The arbitrator found that the sharing of his password was irresponsible, but it was unfair to dismiss him in circumstances where there was no evidence to conclude that it was in fact the employee who attempted to access the bank account.

After his reinstatement, the employer issued a notice to the employee to attend a further disciplinary hearing on charges of misconduct relating to the sharing of his password, and he was dismissed again.

The employee claimed that the second disciplinary enquiry constituted 'double jeopardy'. The Labour Court held that if an employee has already been disciplined for an offence, it does not automatically mean that the employer is precluded from later holding another disciplinary enquiry and imposing a more severe sanction or dismissing the employee for the same offence. The ultimate determining factor is fairness and a second hearing will be permissible if the circumstances justify it.

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ARTICLE: Two issues in strike law: Provocation by an employer leading to an unlawful strike, and the erroneous payment of wages to strikers.

By Prof Alan Rycroft

In this article we consider two recent decisions about different aspects of strike law.

Firstly, when is an unlawful strike justified in response to an employer's conduct?

Item 6 of the Dismissal Code of Good Practice says the substantive fairness of a dismissal for participating in an unprotected strike must take into account whether or not the strike was "in response to unjustified conduct by the employer."

A recent case gives insight into what provocation or unjustified conduct by the employer may be. In Mlondo and Others v Electrowave (Pty) Ltd (D343/2021) [2023] ZALCD 8 (18 May 2023) the employees referred a dispute to the Labour Court in which they contended that their dismissal for participation in an unprotected strike was unfair. Their submission was that the employer provoked the work stoppage by (a) deciding to implement short time without consultation; (b) unilaterally deciding to implement job grading in five years' time in breach of a collective agreement. The employees also argued that the employers' ultimatums were unlawful in that they stated even if there were to be a return to work, employees could nonetheless be disciplined.

Secondly, what can be done if the employer erroneously pays wages to striking employees?

The no-work no-pay principle in enshrined in section 67(3) of the LRA which states that "an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike". Equally, an employer is prevented from making deductions from an employee's remuneration in contravention of section 34 of the BCEA.

But what can the employer do if it erroneously pays wages to strikers that it then wants to recover? This happened in the case of North West Provincial Legislature and Another v National Education Health and Allied Workers Union obo 158 Members (JA17/22) [2023] ZALAC 12 (21 June 2023).

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Bruce Robertson
July 2023
Copyright: Worklaw