Public Newsletter
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on Procedural fairness in pre-retrenchment consultations, in which we look at two recent cases where there were allegations of procedural unfairness.
We also discuss three other new judgments: The first case involved an allegation of unfair discrimination based on language. The second case dealt with the consequences of bypassing a grievance procedure. The third case considers the impact and legal consequences, in the context of a protected disclosure, of an employee's referral of a dispute to the CCMA in terms of s 188A(11) of the LRA, which is titled "Inquiry by arbitrator".
RECENT CASES
Discrimination on the basis of language
In Padayachee v Gauteng Department of Education (LC) 2024 the court had to decide if the inability of an employee to speak an indigenous language justified the employer's interventions, and whether this treatment constituted unfair discrimination.
The employee was employed as a social worker by the Department of Education. She was posted to the Ezibeleni School for Physically Disabled Children. Given the School's location, the vast majority of its learners are black and African. The employee, on the other hand, is a black person of Indian descent, previously classified under apartheid terminology as "Asian". She was the only person of Indian descent at the School.
The School's head of department advised the employee that she intended to appoint an auxiliary social worker to assist her to overcome "language barriers" which prevented her from properly performing her duties. This came as a shock to her as she had no difficulties performing her duties, and felt it was unnecessary to appoint an auxiliary social worker. The employee was told that she did not understand "our children and their culture". The Head did not explain how she had reached those conclusions. Thereafter, two of the foundation phase educators refused to refer learners to her and they too said: "you do not understand our children and their culture".
The employee referred a dispute to the CCMA in terms of section 10 of the Employment Equity Act, 55 of 1998 (the "EEA"), which remained unresolved after conciliation. The employee then referred the dispute to the Labour Court where she testified that the conduct of the Department's officials had traumatised her. These events wounded her emotionally, psychologically, and even caused her physical harm. She was forced to seek the help of a psychologist. The employee sought compensation or damages for the discriminatory conduct by its senior managers and officials in terms of section 50 of the EEA.
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The failure to use a grievance procedure
In Transnet Soc Ltd (Transnet Engineering) v NTM obo Molope and Others (LC) 2025 the court had to decide the consequences of an employee not using the organisation's grievance procedure, as well as an employer's rights if employees continually avoid scheduled disciplinary hearings due to illness.
The two employees were employed as a senior technical worker and a stock controller. They were dismissed following a disciplinary hearing in which they were found guilty of numerous allegations of misconduct relating to the contravention of the employer's Acceptable Use and Electronic Communication Policy, insubordination, insolence, intimidation, threatening behaviour, defamation of character and misrepresentation of facts.
The disciplinary hearing had proceeded in the employees' absence in respect of which they had submitted medical certificates, as a basis for their non-attendance.
The employees referred an unfair dismissal dispute to the Bargaining Council. The Commissioner determined the employees' dismissal to be procedurally and substantively unfair and awarded reinstatement and backpay.
The Commissioner also raised an issue with the fact that the chairperson had not properly considered the medical certificates submitted in support of the employees' absence. Instead, the chairperson had appeared to simply focus on the fact that the employees had launched an urgent application in the Labour Court to interdict the proceedings, rather than considering the medical certificates to determine whether a postponement was justified.
One of the employees had sent emails on behalf of NTM members raising workplace complaints. The Commissioner found that the employer's instruction to stop using its email facility for purposes of conducting union activities was unfair and unlawful. The Commissioner said that the language used in the emails was that of "an angry person who failed to control his anger- an energy which, when not controlled, could later be regretted". Although finding that the language in his emails was inappropriate, the Commissioner held that the underlying issues raised were legitimate employee concerns.
On review the Labour Court overturned the arbitration ward.
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The consequences of a section 188A(11) referral of dispute to the CCMA
In Modika v Industrial Development Corporation of South Africa and Another (LC) 2025 the impact and legal consequences of an employee's referral of the dispute to the CCMA in terms of s 188A(11) of the LRA were set out.
S188A (headed "Inquiry by arbitrator") enables an employer, with the consent of the employee or in accordance with a collective agreement, to request a council, accredited agency or the CCMA to appoint an arbitrator to conduct an inquiry into allegations of an employee's misconduct or incapacity. S188A(11) deals with the specific circumstance of an employee alleging in good faith that the holding of a disciplinary inquiry would contravene the Protected Disclosures Act, and in that instance allows that employee or the employer (without the employee's consent) to require such an inquiry to be conducted in terms of this section.
The employee was employed by the IDC as a Senior Specialist: Employee Relations and Transformation, reporting to 'LM', the Head: Talent Management and Organisational Effectiveness, as his immediate line manager. The employee contended that he was subjected to constant harassment, bullying and victimisation by LM.
The employee lodged a complaint against LM, using the anonymous whistle blowing report line in the IDC for this purpose. In this complaint, the employee raised concerns about systemic bullying, harassment and unfair discrimination practices perpetrated by LM. Just over a month later the employee received an email from the DE: Human Capital, informing him that a law firm had been appointed to investigate his complaint against LM.
Shortly after the employee made the protected disclosure, he was advised of disciplinary charges. The IDC contended that the complaint made by the employee had nothing to do with the disciplinary action that was instituted against him. According to LM, she instructed attorneys a month before the complaint to assist her with an ongoing misconduct issue involving the employee.
The employee was placed on precautionary suspension by LM pending the disciplinary hearing. In this hearing the employee stated that he was the whistleblower and author of the complaint and contended that the hearing constituted an occupational detriment. The employee requested the IDC to suspend the hearing pending the finalisation of an investigation by the Public Protector. In the alternative, he proposed that the disciplinary hearing rather be conducted under s188A of the LRA. The IDC did not accept these proposals and insisted that the disciplinary hearing proceed.
The employee then lodged a referral with the CCMA concerning a protected disclosure, in terms of s188A(11) of the LRA, and the CCMA scheduled a s188A enquiry down for arbitration. The IDC however informed the employee that the disciplinary hearing would proceed, irrespective of his section 188A(11) referral to the CCMA.
The employee then made application to the Labour Court to interdict the internal disciplinary hearing.
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ARTICLE : Procedural fairness in retrenchment consultations By Prof Alan Rycroft
Whilst agreement to retrench is not required by the LRA, there must be a fair procedure before the employer can dismiss employees for operational requirements. What constitutes a fair procedure has been contested in two recent cases.
In FAWU v SA Breweries (Pty) Ltd (LC) 2025 SAB sent a notice to FAWU in terms of s 189(3) of the LRA and applied to the CCMA for facilitation in terms of s189A. SAB's notice referred to a review exercise on which it based proposed restructuring, including the streamlining of specific functions with the aim of improving warehouse productivity. The proposed method of achieving this was to remove the administrative duties of the checker operator and the creation of a new position which would take over those duties, thereby making the checker operator positions redundant.
The union accused SAB of conducting a tick-box exercise and stated that SAB expected it to accept its assessment of various matters without question. The union indicated that it had become aware of a recent advertisement from SAB's labour broker seeking 20 forklift drivers for a "well established brewery in Newlands", which suggested that SAB intended to outsource this function. SAB maintained that it had provided sufficient information to FAWU, which the Union contested.
In the second case, Sahara African Living (Pty) Ltd v Solidarity obo Members (LAC) 2025, retrenchments happened in the context of the Covid pandemic, which resulted in commercial flights being prohibited, borders and entry points closed, and travel banned.
In consequence, the employer, an airline company, introduced temporary measures to reduce employees' remuneration, in return for them remaining employed. It was not in dispute that the variation was introduced without any consultation or agreement with the employees. Although the employees initially accepted these measures without protest, as the temporary period for which the measures were introduced became more extended, they became contested during the second half of 2020. Various attempts to resolve the impasse failed, and after a failed attempt at conciliation, the employees were ultimately retrenched with effect from 31 July 2021.
The Labour Court held that the employer had breached the employees' contracts of employment and failed to comply with section 34 of the BCEA (which deals with reductions from employment). The Court held further that the retrenchment was substantively and procedurally unfair, and that the employer had failed to pay each of the employees their statutory notice. The Court awarded each of the employees the equivalent of three months' remuneration in compensation for the breach of section 34, eight months' remuneration for their unfair retrenchment, and the equivalent of a month's remuneration as notice pay.
The employer took the matter on appeal to the Labour Appeal Court.
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Bruce Robertson
January 2026
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