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 'Parental Leave: Questions arising from the ConCourt's Van Wyk judgment' in light of the ConCourt's recent decision declaring the BCEA's parental leave provisions to be discriminatory and unconstitutional. We also discuss three new judgments: The first case looks at the consequences of an agreement in full and final settlement. The second case decides when it is unfair to charge an employee for a second time on the same charges. In the third case the court was asked whether it or the CCMA has jurisdiction over specific disputes.
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RECENT CASES
What are the consequences of an agreement "in full and final settlement"?
In Meth v Nedbank Limited and Others (2025/056322) [2025] ZALCJHB 438 (3 October 2025) the implications of an agreement "in full and final settlement" were analyzed, including whether the Labour Court retains jurisdiction once the agreement is made.
A male employee of Nedbank had an affair with a male co-employee who was married to a woman. This affair became common knowledge amongst the employees of Nedbank. The employee alleged that, as a result, he was victimised, discriminated against and harassed at work.
During the course of his employment with Nedbank, the employee had travelled to Sun City' where he stayed with his co-employee who was there in an official capacity. During the course of his stay there, the employee was involved in numerous arguments with third parties including Sun City staff and damaged Sun City's property. Sun City had footage of the relevant incident and shared this footage with Nedbank.
Nedbank sought to discipline the employee as a result of his conduct. The employee agreed to terminate his employment and concluded the mutual separation agreement (MSA) with Nedbank.
The employee subsequently argued that the conclusion of the MSA was actuated by duress or undue influence and was therefore invalid. Nedbank contended that the conclusion of the MSA (being a settlement agreement in full and final settlement of the disputes between the employee and Nedbank), meant that the Labour Court lacked jurisdiction to adjudicate the dispute.
Read more (Worklaw subscriber access only)
Charging an employee for the second time
In SAMWU obo Malatsi v South African Local Government Bargaining Council and Others (JA 64/23) [2025] ZALAC 40 (30 September 2025) the LAC had to decide if it is substantively unfair if an employer charges and dismisses an employee with the same misconduct dealt with in a prior binding arbitration award, in terms of which the employee was sanctioned.
The employee was employed as an accountant in the finance department of the municipality. In 2012, the municipality commissioned a forensic investigation after its bankers notified the municipality of possible fraudulent activity in relation to its bank account. The investigation revealed that several unsuccessful attempts had been made from the employee's computer to access the municipality's cash focus internet portal, but the investigation could not establish the identity of the person who had been operating the computer at the relevant time.
The employee was charged with failing to conduct himself with honesty and integrity, alternatively, fraud, in that he attempted to access the municipality's bank account without authorisation. The employee was found guilty of misconduct and was dismissed.
The employee disputed the fairness of his dismissal. The arbitrator concluded that the employee had not committed the misconduct for which he had been dismissed, and that his dismissal was thus substantively unfair. The municipality sought to review the award but the Labour Court dismissed the review application.
After the review application was dismissed, the municipality reinstated the employee. Some two weeks later, the municipality charged the employee with gross dishonesty, alleging that he acted with the intention of deceiving the municipality by sharing his password with other employees and secondly, with a failure to comply with the municipality's IT procedures by sharing his password with other employees, thus permitting his computer to be used for fraudulent activities. The employee was found guilty of these charges and dismissed.
The employee again challenged the fairness of his dismissal and again referred a dispute to arbitration.
Read more (Worklaw subscriber access only)
An election to refer a dispute to the CCMA or Labour Court?
In Association of Mineworkers and Construction Workers Union obo Matebele and Others and Commission for Conciliation, Mediation and Arbitration and Others (JR1895/21) [2025] ZALCJHB 163 (16 May 2025) the Labour Court had to decide if it had exclusive jurisdiction over those categories of claims in section 191(5)(b) of the LRA. This section deals with the more complex dismissal disputes such as automatically unfair dismissals, retrenchment and strike dismissals, and closed shop dismissals.
Section 191(5)(b)(iii) of the LRA provides that the employee, after conciliation, may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is "the employee's participation in a strike that does not comply with the provisions of Chapter IV".
The employer dismissed four employees after concluding that they had committed misconduct during an unprotected strike. The dismissed employees were also trade union representatives of the applicant trade union which brought this application on their behalf.
The dispute was referred to the CCMA for arbitration where the Commissioner found that the employees' dismissal was substantively fair.
On review at the Labour Court the question was whether employees have to refer their unfair dismissal disputes to the Labour Court where they were dismissed for misconduct committed whilst participating in an unprotected strike, or does the CCMA have jurisdiction to arbitrate such a dispute? The employees argued that the CCMA lacked jurisdiction to determine the dismissal dispute on account of the Commissioner concluding "... that there was 'unprotected industrial action". The argument put forward was that section 191(5)(b)(iii) of the LRA requires all disputes regarding the fairness of a dismissal relating to unprotected industrial action to be referred to the Labour Court for adjudication.
Read more (Worklaw subscriber access only)
ARTICLE : Parental Leave - Questions arising from the ConCourt's Van Wyk judgment
by Prof Alan Rycroft
The initial response to the Constitutional Court's judgment in Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20 (3 October 2025) has been positive - in that it represents a historical moment in the recognition of parental equality. The court introduced an interim regime (which will be confirmed later in Parliament's amending legislation) allowing parents to share a combined four months and ten days of parental leave between them when their child is born or adopted.But the implications for employers has also resulted in commentators saying: "In striving for equality, the Court may have forgotten Solomon's wisdom - equality doesn't always mean cutting the baby in half." The likely outcome of the judgment may in fact have an opposite effect - paid entitlements may be removed or reduced for all categories. Policies may be updated to take away paid maternity benefits. The economic reality of the workplace may simply be that employers cannot afford a further large percentage of their workforce being unproductive for at least two months, while still being paid. Other commentators have said: "One of the most notable consequences is that, to comply with the interim reading-in order, employers may now have to roll-back the paid benefits that it previously offered to parents, particularly mothers."
In this article we unravel the implications of the Van Wyk judgment.
Read more (note - only available to Worklaw subscribers)
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Bruce Robertson
November 2025
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