Public Newsletter


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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 Condonation for attorneys' negligence : Where do parties stand? We also look at two cases, one looking at disciplinary consistency and the other at leave pay.

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


Disciplinary consistency vs flexibility

The Code of Good Practice: Dismissal
states that an employer is bound to apply disciplinary sanctions in a consistent manner as between similar incidents in the past and between employees involved in the same incident of misconduct. This creates a tension between rigid consistency and the other obligation -that of taking into account mitigating circumstances before the sanction is applied.

This tension was explored in SRV Mill Services (Pty) Ltd v CCMA & others (2004) 25 ILJ 135 (LC). The dismissal in this case was for absenteeism, a sanction found by the CCMA to be unfair because of inconsistency - another employee was simply warned for absenteeism. The employer sought to have the CCMA's determination set aside.

The Labour Court endorsed the principle of equal treatment, but recognised that differing circumstances may warrant different outcomes in respect of particular employees. Eg different disciplinary records could justify different disciplinary treatment. Some inconsistency is the price to be paid for flexibility, which requires the exercise of discretion in each individual case.

Entitlement to leave pay : take it or leave it ?

One of the purposes of the Basic Conditions of Employment Act is to ensure that an employee takes annual leave. For that reason s 20(2) imposes a duty on the employer to grant annual leave. Traditionally, in some workplaces, there has been a financial incentive not to take leave but rather to ‘cash in' leave, particularly at the point of resignation or retirement.

The interpretation of the provisions of the BCEA arose in P Jooste v Kohler Packaging Limited (2004) 25 ILJ 121 (LC). The applicant was contractually entitled to 25 days paid leave per annum. At the date of his resignation, the applicant had not taken 141 days leave which had accrued to him over the years. The respondent refused to pay in excess of 50 days leave pay, based on a contractual term which provided for the forfeiture of accumulated leave in excess of 50 days. The applicant's response was that because he had not taken the leave entitlement at the request of the respondent for operational reasons, the employer's reliance on the forfeiture clause constituted an unfair labour practice.

The Court found that the BCEA contemplated payment only in respect of leave accrued in the cycle immediately preceding that during which termination takes place, apart for the pro rata entitlement for the then current cycle. The judge based this on the underlying purpose of the BCEA to ensure the employee takes annual leave.

The Court in this case took a robust view of the argument that an employer should not be allowed to benefit from a transgression of the Act by receiving the benefit of work done without paying the employee. The Court was of the view that an employee had to insist on the rights and benefits of leave and that an employer which did not grant this leave could be dealt with in terms of the BCEA. To permit accumulation of leave would be to "thwart the object of the Act".


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Bruce Robertson
June 2004
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