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APRIL 2025 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 www.worklaw.co.za

Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on "Recent cases interpreting the BCEA." We also discuss three new judgments: The first case looks at the difference between negligence and gross negligence. The second case is a civil case where an employee tried to frame his claims as delictual and contractual disputes. The third case deals with the right of a whistle-blower to replace a disciplinary hearing with an inquiry by an arbitrator in terms of section 188A of the LRA.

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

RECENT CASES
What turns 'negligence' into 'gross negligence'?

In Standard Bank of South Africa v South African Society of Bargaining Officials and Others (JA 107/22) [2025] ZALAC 10 (27 February 2025) the Labour Appeal Court was required to distinguish between 'mere' negligence and 'gross' negligence, and to confirm at what point dismissal is fair.

As the Bank's Human Capital Consultant (HCC) the employee's role included providing Human Resources-related services to business clients in the Free State and authorising lease agreements. The employee was issued with a notice to appear before a disciplinary inquiry to answer to allegations of misconduct related to a contravention of the Banks' Housing Policy and "gross negligence". The allegations included that she failed to obtain authorisation for a particular lease agreement and check that it was properly signed. She was found guilty and dismissed.

The employee referred an unfair dismissal dispute to the CCMA. The commissioner noted that the allegations related to gross negligence. He found that because the Housing Policy was ambiguous on the roles and responsibilities of a Human Capital Consultant, it was probable that the employee could have not foreseen the harm that had been caused in this case. The employee had been mistaken that she was allowed to authorise the lease.

In respect of the fairness of the sanction, the commissioner held that the employer failed to discharge its onus to prove negligence - the employee had demonstrated that she and her department had regularly signed without supporting documents, and that others had never been disciplined for such conduct. The employee's dismissal was found to be unfair and she was reinstated with 3 months' backpay.

The Labour Appeal Court dismissed the Bank's review application against the arbitrator's award.

Read more (Worklaw subscriber access only)

When the consequences outweigh the wrong

The High Court case of Sephton v Anglo Operations (Pty) Ltd and Others (A2024/113960) [2025] ZAGPJHC 239 (25 February 2025) serves as an example of how a workplace incident involving possible sexual harassment can result in claims being made in the civil courts. The Full Bench of the High Court had to untangle complex claims by a person against whom harassment allegations had been made, that he subsequently brought against the employee who alleged harassment, her employer, and his employer.

The court put it like this: "This case presents a cautionary tale as to the fragility of workplace relationships. People come together in diversity. Their differing backgrounds often lead them to differ in their appreciation of jokes and banter. One person's playful act may be interpreted by another as deeply insensitive or disrespectful. This diversity calls for the utmost restraint and the observing of all protocols and courtesy at all time when working with others."

Read more (Worklaw subscriber access only)

Requiring the employer to use a section 188A Inquiry by an arbitrator, rather than an internal disciplinary hearing

In National Commissioner Department of Correctional Services v Nxele and Another (DA 04/2023) [2025] ZALAC 9 (17 February 2025) the LAC ruled on what an employee who has made a protected disclosure must prove to trigger an inquiry by an arbitrator under section 188A(11) of the LRA, rather than face an internal disciplinary hearing initiated by the employer.

Section 188A(11) says the following:
"Despite subsection (1), if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000 (Act No. 26 of 2000), that employee or the employer may require that an inquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee."
The LAC held that there is no obligation on an employee who seeks to rely on section 188A(11) of the LRA to prove that the holding of the disciplinary hearing constitutes a contravention of the Protected Disclosures Act. Rather, what is required is that the employee "alleges in good faith" that the holding of an inquiry does so. The concept of good faith is sensitive to context and the employee satisfies this requirement by showing a nexus between the protected disclosure and the disciplinary enquiry.

Read more (Worklaw subscriber access only)

ARTICLE: Recent cases interpreting the BCEA

By Prof Alan Rycroft

The BCEA is a 'bread-and-butter' statute dealing with the basic issues of working life: hours of work, leave, termination of employment etc. It is generally clearly written and there are relatively few cases reported on its interpretation. But recently there have been several cases on various sections of the BCEA.

In this article, Alan Rycroft discusses the following cases: Read more (Worklaw subscriber access only)

About Worklaw's services

Worklaw is an online labour law advice and information subscription service - see www.worklaw.co.za. 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 help@worklaw.co.za for more information.

Bruce Robertson
April 2025
Copyright: Worklaw
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