Public Newsletter


Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to

Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter has an article discussing "a policy for remote working", particularly relevant in the current Covid-19 pandemic. We also discuss three new cases: The first case looks at the response of the Labour Court to what it perceived to be frivolous and vexatious litigation over Covid-19, where a trade union withdrew an application concerning COVID-19 precautions at the last minute. The second case deals with the assessment of compensation for an unfair dismissal where the employee had tried to resign before being dismissed. The third case, a Constitutional Court judgment, looks at whether an automatic dismissal for a criminal conviction is suspended until all appeals are heard.

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


'Frivolous and vexatious' Covid-19 litigation

Nehawu brought an urgent application about alleged omissions by the Minister of Health in providing Personal Protective Equipment (PPE) to health workers in the fight against Covid-19. Relief was also sought against 11 other respondents, mainly the MEC for Health in every Province. The relief the union sought included an order directing the respondents to meaningfully engage Nehawu on these matters, and pending that, an interdict to declare unlawful any disciplinary action taken against the Nehawu's members over refusing to work without PPE's.

On Friday, 3 April 2020, Nehawu filed this application on an urgent basis, to be heard on Tuesday, 7 April 2020. Nehawu required the respondents to file their opposing papers by 4pm on Sunday, 5 April 2020. The respondents, for good reason, only managed to file on Monday night, 6 April 2020. As a consequence the parties agreed that the matter would be heard at 2pm on Tuesday, 7 April 2020 to give Nehawu an opportunity to consider a reply. However, at 2pm Nehawu asked for the matter to be adjourned to 8 April 2020. Despite opposition from the respondents, the application was granted. On the morning of 8 April 2020, Nehawu attempted to withdraw its application, with no tender of costs.

In National Education Health and Allied Workers Union (NEHAWU) obo members providing essential services v Minister of Health and Others (J423/20) [2020] ZALCJHB 66 (11 April 2020), the Labour Court said it has a discretion, notwithstanding the withdrawal of a matter after the commencement of proceedings, to continue to decide the matter on the merits after proceedings have commenced. The question of injustice to the other parties is germane to the exercise of the Court's discretion.

The court said that the allegations raised by Nehawu, by their very nature and at this particular time, deserve evaluation and determination so that all parties to this dispute - and the public at large - are not left with an impression that a 'technicality' interrupted the truth emerging on whether doctors and nurses at public facilities have sufficient PPE.

After going through extensive evidence concerning each of the provinces, the Labour Court concluded that Nehawu did not come close to establishing its central contention that, at the time it launched its application, there was a shortage of PPE at public health facilities warranting the relief it sought. Many of Nehawu's claims were hearsay or unsourced. The respondents produced strong evidence that since the onset of the coronavirus crisis, they had engaged with Nehawu and other unions on the issues raised by Nehawu, and intend to continue to do so.

As regards the requested interdict against disciplinary action, no facts were cited regarding any employees who had been threatened with dismissals for refusing to perform their duties due to a lack of PPE. The court said it cannot grant a global ruling that employers cannot take disciplinary action against NEHAWU's members who refuse to treat patients, because in their opinion they do not have appropriate PPE. The relief sought was abstract and was dismissed for this reason alone.

As regards costs, the Minister of Health pointed out that all the respondents were before the court at the instance of Nehawu on an urgent basis, during a lockdown period. The court said that the time and resources used to defend Nehawu's spurious claims could and ought to have been put towards efforts in addressing the Covid-19 outbreak. Instead, for two consecutive days each of the MECs and Heads of Department had to spend significant amount of time dealing with this application, time that they could not afford as their services and time are required on the pressing issue of dealing with Covid-19.

The court stated that under circumstances of national disaster, everyone is called upon, for the good of society as a whole, to co-operate in bringing the pandemic under control. A new value system on what constitutes acceptable behaviour has been thrust upon us all. Whilst the court recognized it is not in a position to dictate that a spirit of co-operation must imbue how parties conduct themselves, it can adjust the standard of what constitutes frivolous and vexatious conduct in litigation. In this way, those who elect to pursue obviously untenable legal points, use the court process as part of other power-plays, and unnecessarily consume the resources of their opponents by making allegations they cannot substantiate, should know that they run the risk of a cost order.

The court dismissed the application with costs on the basis that Nehawu had failed to make out a case on the law and facts. The LC's judgment should serve as a warning to future applicants considering similar applications under current circumstances.

Assessing compensation where there was a tender of resignation

If, in the messy ending of an employment relationship, an employee tenders her resignation but the employer unfairly dismisses her, should the amount of compensation take into account that the employee intended to resign anyway?

In a recent case, the employee, a qualified advocate, resigned from her position as head of the employer's legal services division after falling out with a superior. The employer disregarded the resignation and proceeded with a disciplinary inquiry which resulted in the employee's dismissal.

At the CCMA, after ruling the dismissal unfair, the Commissioner held that reinstatement would be inappropriate and awarded the employee compensation equal to 8 months' salary. On review, the Labour Court reduced the compensation to the equivalent of one month's salary because the employee had resigned.

The Labour Appeal Court in Bester (Scott) In re: Small Enterprise Finance Agency SOC Ltd v Commission for Conciliation Mediation and Arbitration and Others [2020] 3 BLLR 244 (LAC); (2020) 41 ILJ 877 (LAC) noted that the sole issue on appeal was the quantum of compensation awarded. The LAC challenged the Labour Court's view that if an employee resigns after being dismissed on notice, the maximum compensation that may be awarded is an amount equal to the balance of the notice period. The LAC asked why, if the CCMA arbitration award was based on a finding that the employee had been unfairly dismissed, there was any room for factoring a resignation into the amount of compensation to be awarded? Compensation awarded is based on an unfair act by the employer, and serves a purpose wider than recovering patrimonial damages. Once she was dismissed, her resignation played no further role.

Leaving aside the resignation issue, the LAC found that the Commissioner's reasons for granting eight months' compensation were entirely reasonable. Apart from ignoring the evidence that the resignation was not voluntary, the Labour Court had treated the matter as a contractual claim, which overlooked the purpose of compensation. This was no basis for interference with the compensation awarded by the Commissioner. The LAC granted the appeal against the LC judgment and confirmed the CCMA award of 8 months' salary as compensation.

The lesson of this case is that, once it is found that the termination of employment was caused by an unfair dismissal, the fact that the employee attempted to resign should play no practical role in determining the compensation to be awarded.

'Automatic' termination of employment

Mainly in legislation, but also in a contract, provision is sometimes made for the automatic termination of employment. The term "ex lege" is used to describe the situation where employment is ended because a legal requirement is not met. This means that the termination is not the result of a dismissal, but happens automatically "ex lege" - because of unmet legal requirements.

The legal requirements could be having a valid driving licence, or maintaining a security clearance, as occurred in the case of Solidarity and Another v Armaments Corporation of South Africa (Sco) Ltd and Others (JA40/17) [2018] ZALAC 39 (27 November 2018), which we discussed in our January 2019 Newsletter.

In a recent case an employee of the SANDF was charged with rape. When he was convicted, the SANDF, relying on s59(1)(d) of the Defence Act 42 of 2002, terminated his employment. S59(1)(d) provides that the service of a SANDF member is terminated through the operation of law, if he or she is sentenced to a term of imprisonment by a competent civilian court without the option of a fine.

On appeal, the employee's criminal conviction and sentence were set aside but the SANDF refused to reinstate him. The employee then launched an application in the High Court alleging that the SANDF, when terminating his services, relied on s59(1)(d) of the Defence Act, when in fact it should have relied on s42(1) the Military Discipline Supplementary Measures Act 16 of 1999 (MDSMA), which provides for suspension of a convicted person from duty until the conclusion of an appeal or review. The High Court agreed that the SANDF ought to have invoked the provisions of s42(1) of the MDSMA, and ordered his reinstatement and the payment of his salary and benefits from the date of his arrest.

On appeal, the Supreme Court of Appeal overturned the High Court's order, interpreting s59(1)(d) to mean that once the employee had been sentenced to imprisonment, his services at the SANDF were terminated through the operation of law. Consequently, in the absence of a provision for any reinstatement in s59(1)(d), the employee remained dismissed through the operation of the law.

The employee then applied to the Constitutional Court for leave to appeal in Maswanganyi v Minister of Defence and Military Veterans and Others (CCT170/19) [2020] ZACC 4 (20 March 2020). The SANDF opposed the application, contending that s59(1)(d) took effect ex lege (by operation of law) upon the employee's conviction and sentence, and that the application should be dismissed.

In a unanimous judgment, the Constitutional Court held that the words "conviction" and "sentence" in s59(1)(d) of the Defence Act must be interpreted to refer to valid and final convictions and sentences, in instances where there is an appeal. Once the decision of the trial court was set aside, there was no longer any lawful conviction nor sentence and the jurisdictional factors set out in s59(1)(d) of the Defence Act fall away. The member would no longer have a criminal record and no purpose would be served by continuing to subject the member to the penal provisions of the section.

The Constitutional Court issued an order declaring that the employee's service with the SANDF did not terminate under s59(1)(d) of the Defence Act and that he continued to be in the employed by the SANDF in the same position and capacity.

The lesson of this case is that where there is a provision that employment terminates automatically if an employee is convicted of a crime and imprisoned, termination will only occur if the conviction and sentence are valid and final. The employment contract would be suspended until court appeals are concluded.

ARTICLE: A policy for remote working

By Prof Alan Rycroft

One of the many consequences of the COVID-19 pandemic is that for the first time many employees are required to work remotely. This happened with little warning, and many employers had no remote working policy or protocol in place.

Many workplaces may find unsuspected benefits in remote working arrangements, to the extent that these continue after the COVID-19 pandemic has subsided. The pandemic will likely lead to fundamental changes to the world of work.

This article aims to provide 'food for thought' on introducing Remote and Flexible Work Policies, and discusses the following:
  • Variations in remote and flexible work
  • Who decides the form of working?
  • How is consent obtained?
  • Equipment required for effective remote work
  • Reporting & Accountability
  • Employment rights extend to private homes and cars
  • Remote working team effectiveness needs
  • Dealing with the limitations of home working
Read more (note - only available to Worklaw subscribers)


Worklaw is an online labour law advice and information subscription service - see Worklaw subscribers can obtain advice from experienced arbitrators, research the law and leading cases, receive weekly and monthly news updates, attend Worklaw's annual labour law updates, and access excellent training material, model procedures and checklists, to name a few of these services.

Contact for more information.

Bruce Robertson
May 2020
Copyright: Worklaw