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 contains an article on 'When can a settlement agreement be set aside?', in light of a recent judgment on this topic. We also discuss three other new judgments: The first case investigates when a lack of reasonable accommodation for a disabled employee becomes intolerable and amounts to a constructive dismissal. The second case considers informal deviations from a disciplinary procedure. The third case deals with when a Labour Court review turns into an appeal.

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


Disability and constructive dismissal

In Lagadien v Minister of the Department of Science and Technology and Another (JS 1042/17) [2023] ZALCJHB 261 (27 September 2023) a disabled employee resigned and claimed it was a constructive dismissal and automatically unfair, because the employer had made employment intolerable by not making reasonable accommodation for her disability.

After investigating allegations about (a) the provision of a personal assistant; (b) assistive devices; (c) ablution facilities; (d) office space; and (e) a hostile environment, the court held that the applicant had not, based on her own evidence, made out a prima facie case relating to all the elements of her claim under section 186(1)(e) of the LRA (dealing with constructive dismissal), let alone under section 187(1)(f) of the LRA (dealing with automatically unfair dismissal).

The Department's application for absolution from the instance was granted and the applicant's claim was dismissed. The judgment provides clarity on when a court might grant an application for absolution from the instance.

Read more (Worklaw subscriber access only)

Deviations from the disciplinary procedure

In Van Tonder v Sibanye Stillwater Ltd and Others (JR 651/20) [2023] ZALCJHB 265 (19 September 2023) a manager offered employees an alternative to formal discipline - submerging their heads in the fishpond (believe it or not!). Although they agreed, they later grieved about this degrading treatment, which led to the dismissal of the manager concerned. He then challenged the fairness of his dismissal, saying there was a tradition of dealing with transgressions in this way.

The court investigated when "customary" deviations from a disciplinary code could be fair. But the court concluded that where an employer has a reasonable and lawful disciplinary procedure, the use of an informal alternative procedure by a manager will be misconduct because it impacts on an employer's obligation to act consistently.

Read more (Worklaw subscriber access only)

When a Labour Court review turns into an appeal

In Sibanye Gold Protection Service v Commission for Conciliation, Mediation and Arbitration and Others (JR2476/19) [2023] ZALCJHB 258 (12 September 2023) the employer tried to use the review process to get the court to embark on an appeal - considering all the evidence afresh. The court was quick to distinguish between a review of an arbitral award - which the LRA allows - and an appeal, which is not allowed by the Labour Court. The judgment usefully distinguishes between the two processes.

A supervisor in the Protection Services Department at Sibanye's Driefontein Mine sent a voice note to the members of his Neighbourhood Crime Watch WhatsApp Group warning them about unlawful strike action at the mine and its consequences for the surrounding area. He was dismissed for revealing confidential strike information in public without authorisation.

After the dismissal was found to be unfair at the CCMA, the employer instituted review proceedings in the Labour Court.

Read more (Worklaw subscriber access only)

ARTICLE : When can a settlement agreement be set aside?

by Prof Alan Rycroft

Reaching a settlement agreement after negotiations have taken place to resolve a dispute is seen as a private process. How the parties choose to resolve that dispute is generally seen as being up to them, a private matter immune from public or judicial scrutiny. Many settlement agreements contain confidentiality clauses precisely to ensure that the contents of the agreement remain out of the public domain. The consensual settlement of disputes is widely accepted as a more desirable way of resolving disputes than adjudication. Retaining control over the outcome, even though that comes in the form of a compromise, is felt to be better than risking the outcome in a lengthy and costly court or arbitration process which must usually decide a winner and a loser.

In Ephraim Mogale Local Municipality v Hlongwane NO and Another (JR 1888/2019) [2023] ZALCJHB 179; [2023] 9 BLLR 898 (LC); (2023) 44 ILJ 1944 (LC) (7 June 2023), the municipality reached an 'out of court' settlement with a municipal manager who had invested R80 million of the municipality's funds with VBS Mutual Bank (VBS), despite VBS not being registered as a bank in terms of the Banks Act. Notwithstanding this, the chairperson of the disciplinary hearing found that the misconduct did not warrant dismissal.

The municipality subsequently sought to have the settlement agreement set aside, saying it has been badly advised, whereas the manager sought to have the settlement agreement made an order of court. The Labour Court had to decide these 2 applications.

In Alan Rycroft's article he discusses the basis for the Court's ruling on these applications.

Read more (note - only available to Worklaw subscribers)

About Worklaw's services

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
November 2023
Copyright: Worklaw