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 'the employer's obligations to a pregnant employee' in light of a recent judgment on this topic. We also discuss three new judgments: The first case deals with a highly unusual development - the Minister of Employment & Labour facing contempt charges in the Labour Court. The second case investigated whether continued employment was objectively unbearable in the context of a constructive dismissal claim. In the third case the court was asked if the law allows an employer to adopt a zero-tolerance approach for all infractions of a workplace rule.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
Is the Minister 'in contempt' for not including an agreement in the EE Regulations?
In Solidarity v Minister of Employment and Labour and Others (J661/23) [2025] ZALCJHB 392 (3 September 2025) the Labour Court was asked to determine whether the Minister of Employment and Labour, and her Director General, are in contempt for not including as part of the final Employment Equity Regulations, a settlement agreement which was agreed to be included therein.
The Labour Court has ordered the Minister and the Director General to present themselves to court on 19 November 2025 to show why they should not be found guilty of contempt of court for failing to comply with the settlement agreement (which was made a court order) that agreed that the settlement agreement would be included in the Employment Equity Regulations.
A term of the settlement agreement was that it would be gazetted as part of the Employment Equity Regulations, and it was subsequently included as clause 4 of draft Regulations gazetted for public comment in 2024. Clause 4, however, did not appear in the final Regulations gazetted in April 2025, which prompted Solidarity to launch these contempt proceedings against the Minister of Employment and Labour, the Deputy Minister, the Department of Employment and Labour, and the Director General of the Department of Employment and Labour.
The specific wording of the Court's order requires the Minister "to appear in the Johannesburg Labour Court on 19 November 2025 at 10h00 to show cause why she should not be found guilty of contempt of court for failing to comply with the order of this court dated 31 October 2023........... In the absence of providing an explanation to the satisfaction of the court, or failing to appear in court despite being properly served, the first respondent is to be found guilty of contempt and incarcerated for such period as the court deems appropriate; or fined in an amount the court deems appropriate; or other alternative relief."
Read more (Worklaw subscriber access only)
The test for constructive dismissal
In Drakenstein Local Municipality v Matjan and Others (C70/2024) [2025] ZALCCT 55 (22 July 2025) the Labour Court, in dealing with a constructive dismissal claim, was required to assess whether, objectively, there was any reasonable alternative to resignation and whether, objectively, the employer was at fault.
The employee was employed as an Electrical Apprentice in 2009 and was promoted to Superintendent in 2016. He was responsible for managing electrical maintenance, supervising staff, and participating in a rotational standby roster for after-hours faults. He was subjected to a disciplinary hearing and issued a final written warning on 29 January 2021, after he failed to respond to a call-out.
The Head of Electrical Services, Mr G, subsequently removed the employee from further stand-by duties. The employee was also instructed not to undermine certain arrangements introduced to curb a backlog in service delivery.
The employee filed a grievance in September 2021, accusing Mr G of victimisation. Mr G retired during the same period, and the grievance hearing was concluded by his replacement. It was decided that the employee would be reinstated to his full duties, and he accepted the proposal. The employee nevertheless referred a dispute in lieu of outstanding standby monies, but the application was subsequently dismissed due to lateness.
During June 2023, Mr G was appointed on a contractual basis, although he was not the manager of the employee. On 12 June 2023, a meeting was held to address various complaints about malfunctioning streetlights. During the meeting, he was verbally attacked by Mr G. He resigned the following day. He did not file a grievance regarding Mr G's verbal attack because he believed it would be used against him. After resigning, he served his notice period but took some sick leave during that time. Management did not approach him, nor did anyone attempt to resolve the issue. He was still willing to work for the employer if the working environment was improved. The employer believed the employee was entitled to lodge a grievance if he was dissatisfied with certain alleged remarks, but he did not do so.
The employee referred an unfair dismissal dispute to the SALGBC. The arbitrator found that the employment relationship had become intolerable and that the employer had failed to provide any reasons for its conduct. The commissioner determined that the employee was constructively dismissed under s 186(1)(e) of the LRA, and ordered the employer to pay the employee the equivalent of six months' salary.
In an unopposed review application at the Labour Court, the employer sought to review and set aside the arbitration award. The employer's case was essentially that the commissioner misapplied the onus in a constructive dismissal case and failed to properly assess the material evidence.
Read more (Worklaw subscriber access only)
Is a Zero Tolerance policy enough?
In Chill Beverages International (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (C160/2024) [2025] ZALCJHB 298 (14 July 2025) the court had to assess whether an employer can adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence.
The employer manufactured and distributed various beverages, some of which contained alcohol. The employee was appointed as a forklift driver and had to transport raw materials. The items lifted included bags weighing up to one ton of sugar or containers of up to 1000 litres of liquid ingredients.
On 20 May 2023, the employee was an hour late for work. All employees were subjected to a breathalyser test when entering or exiting the factory. The employee tested positive and had to undergo the test several times. The employer also used different devices to ensure that the initial device was not faulty. The employee was required to wait in the canteen, where he could eat and drink before being re-tested. He was tested again and failed once more.
The employee wrote a statement and submitted that he had used medication and was unaware that it contained alcohol. The employee did not smell of alcohol and displayed no visible signs of being intoxicated.
The employee was a first offender with six years of service but he was dismissed for alleged gross misconduct for failing a breathalyser test.
Aggrieved by his dismissal, the employee referred a dispute to the CCMA. The commissioner found that the dismissal was substantively unfair (procedural fairness was not disputed) and ordered the reinstatement of the employee, along with payment of R 24 600 in lieu of arrear salary.
On review at the Labour Court, the court confirmed an earlier ruling of the LAC that the law does not allow an employer to adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence. A zero-tolerance policy will be fair where the circumstances necessitate such a policy.
Read more (Worklaw subscriber access only)
ARTICLE: : The employer's obligations to a pregnant employee
by Prof Alan Rycroft and Tanya Venter
Maternity rights (which may soon be renamed as parental rights) have at least three aspects: maternity leave, maternity benefits and job security.There is another dimension: the care of the pregnant mother while she is working. Section 26 of the BCEA provides that no employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.
Section 26(2) requires that during an employee's pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if-
- the employee is required to perform night work,
- or her work poses a danger to her health or safety or that of her child; and
- it is practicable for the employer to do so.
The conditional aspect of an employer's obligations emerged in Manyetsa v New Kleinfontein Gold Mine (Pty) Ltd (JS706/14) [2017] ZALCJHB 404 (7 November 2017) where it was held that Section 26(2) of the BCEA does not mean that suitable, alternative employment is guaranteed for a pregnant employee. The LC highlighted that even if alternative work was available, it still had to ask whether those alternatives were 'suitable' and whether it was 'practicable' for the employer to offer this alternative employment. Whether alternatives considered were suitable, and whether it was practicable to offer this alternative employment on no less favourable terms and conditions, were questions of fact to be decided under the circumstances of each case.
The recent case of Moleme v Induradec Coatings (Pty) Ltd (D581/2023) [2025] ZALCD 18 (7 May 2025) is an illustration of the how differently specific circumstances can be assessed. The employee in this case was employed as a Chemist in a chemical coating company and her functions included aspects of research and product development. In terms of her contract of employment she was guaranteed four months unpaid maternity leave in compliance with s25 of the BCEA.
The employee notified the employer of her pregnancy in March 2023. She was concerned about continuing to work in the laboratory, which would expose her to certain chemicals, including Bisphenol A, and requested to be moved out of that environment.
Read more (note - only available to Worklaw subscribers)
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Bruce Robertson
October 2025
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