MRL3702 102 - 2019 - 3 - B

MRL3702/102/3/2019
Tutorial letter 102/3/2019
LABOUR LAW
MRL3702
Semesters 1 and 2
Department of Mercantile law
IMPORTANT INFORMATION:
This tutorial letter contains important
information about your module.
MRL3702/102
CONTENTS
A. GENERAL INFORMATION
1. Introduction
2. The prescribed book
3. Overview of the prescribed book
B. STUDY UNITS
STUDY UNIT 1: The protection of employees in terms of legislation
STUDY UNIT 2: The impact of common law on contracts of employment
STUDY UNIT 3: The Basic Conditions of Employment Act
STUDY UNIT 4: The Employment Equity Act
STUDY UNIT 5: Unfair labour practices under the Labour Relations Act
STUDY UNIT 6: Termination of an employment contract: definitions of
dismissal and automatically unfair dismissal
STUDY UNIT 7: Fair and unfair dismissal and dispute resolution
STUDY UNIT 8: Freedom of association, trade unions’ rights and employers’

rights
STUDY UNIT 9: Collective bargaining
STUDY UNIT 10: Workplace forums
STUDY UNIT 11: Strikes and lock-outs
STUDY UNIT 12: Pickets and protest action
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A. GENERAL INFORMATION
Dear Student
1. INTRODUCTION
Welcome to the Labour Law module (MRL3702). We hope that you will find studying
the module interesting and rewarding. We will do our best to help you complete this
module successfully. Please note that this learning material only provides guidance to
assist you in going through and understanding the prescribed book. You must
therefore have a copy of the prescribed book and study it.
2. THE PRESCRIBED BOOK
The prescribed book for this module is:
McGregor, M & Dekker, AH (eds). 2017. Labour law rules! 3rd edition. Cape Town: Siber
Ink.
You must purchase the prescribed book and work through it with the help of this
tutorial letter.
Please take note that only the following chapters of the prescribed book are
prescribed for this module: chapters 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14 and 15.
3. OVERVIEW OF THE PRESCRIBED BOOK
The prescribed book consists of four parts:
Part I: Introduction to labour law

Part II: Rules applicable during the course of employment
Part III: Rules applicable to the termination of the employment relationship
Part IV: Rules applicable to collective bargaining
PART I: INTRODUCTION TO LABOUR LAW
Labour law deals with the legal consequences that flow from the employment
relationship. It regulates both the individual and the collective employment
relationship. The individual employment relationship is concluded between one
employer and one employee. The collective relationship exists between one or more
employers and more than one employee. Employers may act collectively by way of
employers’ organisations, and employees may join trade unions that represent them in
the collective labour arena.
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It is important to understand that a contract of employment forms the basis of the

relationship between an employer and an employee and that the principles of law of
contract therefore apply to this relationship. Law of contract assumes that the parties
to a contract are in an equal bargaining position. However, an employment contract is
different because the employer is in a stronger bargaining position and can largely
dictate the terms and conditions of employment. Hence, the principles of law of
contract had to be supplemented by labour laws designed to balance the interests of
employees and employers in order to ensure fairness in the employment relationship.
Part I of the prescribed book consists of only one chapter (chapter 1), which gives a
brief historical background to South African labour law and contrasts it with modern
labour law. The current tripartite manner of making labour laws and the scope of
labour laws are explained.
PART II: RULES APPLICABLE DURING THE COURSE OF EMPLOYMENT
This part of the prescribed book concerns the legal requirements with regard to
 the conclusion of a valid contract

 the effect of certain terms in a contract of employment, for example a “restraint of
trade clause”
 the minimum terms and conditions of employment
 the rights and duties of employers and employees that flow from the contract
 the consequences that flow from common law and their effect on the contractual
relationship, for example the doctrine of vicarious liability
 the potential and compulsory deductions relating to social protection laws that
must be made from employees’ salaries, for example insurance against
unemployment and medical aid and pension fund contributions
 the compulsory contributions of an employer in terms of social protection
legislation, for example in terms of the Compensation for Occupational Injuries
and Diseases Act 130 of 1993 (COIDA) and the Skills Development Act 97 of 1998
(SDA)
 the circumstances in which terms and conditions of employment can be changed
 acts (or omissions) of an employer that will be regarded as unfair labour practices
Part II consists of six chapters:
 Chapter 2 deals with the exclusive protection of employees provided by labour

laws. The tests used to determine the difference between an employee and an
independent contractor are discussed.
 Chapter 3 is about the impact of common law on the contractual agreement
between the parties. Both law of contract and common law are sources for
determining the rights and duties of employers and employees that flow from the
employment relationship.
 Chapter 4 is about the Basic Conditions of Employment Act 75 of 1997 (BCEA),
which mainly regulates minimum terms and conditions of employment.
 Chapter 5 focuses on the Employment Equity Act 55 of 1998 (EEA), which
prohibits unfair discrimination in the workplace and regulates the implementation
of affirmative action measures.
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 The Labour Relations Act 66 of 1995 (LRA) is discussed in chapter 6, but only as
far as unfair labour practices (unfair acts or omissions by an employer against an
individual employee) are concerned. Unfair labour practices are discussed
separately from dismissal because they occur during actual employment.
 In chapter 7, social insurance legislation is discussed. The focus of this chapter is
on social insurance matters that influence the employment relationship. The
chapter is divided into discussions on social insurance legislation relating to
 the prevention of occupational injuries and diseases (in terms of the

Occupational Health and Safety Act 85 of 1993 [OHSA] and the Mine Health and
Safety Act 29 of 1996 [MHSA])
 compensation for employees who have suffered occupational injuries/contracted
diseases or lost employment (COIDA, the Occupational Diseases in Mines and
Works Act 78 of 1973 [ODMWA] and the Unemployment Insurance Act 63 of
2001 [UIA])
 the reintegration of employees into the workplace after an injury or illness (the
SDA and the Skills Development Levies Act 9 of 1999 [SDLA])
 In Chapter 8, the transfer of a business as a going concern is discussed.
PART III: RULES APPLICABLE TO THE TERMINATION OF THE EMPLOYMENT

RELATIONSHIP
In this part of the prescribed book, the different ways of terminating a contract of
employment are explained. The less confrontational ways (such as resignation,
retirement, death and insolvency) are briefly discussed. The focus is on the more
“confrontational” form of termination, namely, dismissal. The LRA allows dismissal for
three reasons, namely
(1) misconduct
(2) incapacity
(3) operational reasons
Dismissal for misconduct, or “fault” dismissal, implies that the employee is guilty of
misbehaving and is then dismissed. Dismissal for incapacity and dismissal for
operational reasons are termed “no-fault” dismissals, because the employee is
regarded as a “victim” or is caught in circumstances beyond his or her control that
warrant dismissal. Examples are an employee who cannot perform the required work
because of a lack of skills or an injury, or cases where an employee is retrenched
because of poor economic conditions. The focus of chapter 9 is on determining when
the conduct of an employer will be regarded as dismissal of an employee. If such
conduct does constitute dismissal, the next step is to determine whether the dismissal
was automatically unfair and, if not, whether it was fair or unfair. The type of
dismissal will determine which requirements will be applicable in determining whether
it was both substantively and procedurally fair.
This part of the prescribed book consists of two chapters (chapters 9 and 10), which
contain a detailed discussion of law of dismissal and other ways of terminating the
employment relationship.
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At the start of the employment relationship, it is important to determine whether a

person qualifies as an employee or not because only employees qualify for protection
in terms of labour legislation. Such protection relates to minimum terms and
conditions of employment, unfair labour practices, unfair discrimination, unfair
dismissal and participation in industrial action. Once an employment contract has
been concluded and an employee has commenced work, both the employee and the
employer have to perform as agreed on in the contract of employment. However, bear
in mind that the employment contract is subject to the minimum conditions of
employment contained in the BCEA and the rights and duties determined by common
law.
As in any other area of life, matters may go wrong in the workplace. For example,
during employment, an employee can get temporarily ill or may be injured while on
duty, in which case the provisions of COIDA or the UIA may apply. An employee may
have a grievance against his or her employer based on, for example, non-promotion or
an unfair suspension and if it is unsatisfactorily resolved, the employee will have to
resort to an unfair labour practice claim.
With regard to dispute resolution, the LRA created the Commission for Conciliation,
Mediation and Arbitration (CCMA), the Labour Court and the Labour Appeal Court as
special dispute resolution institutions to ensure accessible and fast dispute resolution.
The LRA requires that most disputes first be referred for conciliation, which can be
conducted under the auspices of the CCMA or a bargaining or statutory council
registered for a particular sector and area. If conciliation fails, the Act prescribes the
dispute resolution route that should be followed. These routes are either arbitration or
adjudication. Either the CCMA or a bargaining or statutory council deals with
arbitration; the Labour Court deals with adjudication. After arbitration, provision is
made for a review of the award. In the case of adjudication, provision is made to
appeal against the decision by the court a quo.
PART IV: RULES APPLICABLE TO COLLECTIVE BARGAINING
The power play between employers and employees is best displayed when they engage
in collective bargaining. The LRA and other labour legislation lay down basic rights,
duties and remedies to ensure fairness in the employment relationship. These are
matters relating to the rights that employees have and are called “rights issues”. When
it comes to creating new terms and conditions of employment (“interest issues” or
“matters of mutual interest”) or changing existing terms, there is no legislation that
specifically regulates the situation. This is because the parties themselves best
determine these issues. For example, a court cannot determine an annual increase for
employees.
The LRA recognises the importance of collective bargaining and supports the
mechanism by protecting the rights of employees and employers to form and join
organisations of their choice and to participate in the activities of those organisations.
The LRA regulates the registration of these organisations. It further creates bargaining
forums, guarantees the right to freedom of association and regulates the right to
freedom of association and organisational rights. Lastly, it regulates industrial action
for both employees and employers.
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When you study Part IV of the prescribed book, it is important to understand that
collective labour law is not discussed as a phase of employment because it influences
all stages of the employment relationship.
Part IV consists of chapters 11, 12, 13, 14 and 15. Chapter 11 deals with the
foundations of collective labour law, namely, freedom of association and organisational
rights. Chapter 12 deals with collective bargaining and chapter 13 with workplace
forums. Chapters 14 and 15 are about the various forms of industrial action, namely,
strikes and lock-outs, pickets and protest action.
Please note that each part of the prescribed book starts with a summary and sets out
the legal implications relevant to each employment stage. Each chapter starts with a
detailed table of contents that will guide you through the chapter.
If you study the prescribed book and follow the guidelines in this learning material,
you will do well.
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B. STUDY UNITS
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STUDY UNIT 1
THE PROTECTION OF EMPLOYEES IN TERMS OF
LEGISLATION
OUTCOMES
At the end of this study unit, you should be able to
 define the term “employee”

 distinguish between an employee and an independent contractor
 describe the different tests used by the courts to determine whether a person is
an employee and to apply them to a practical situation
 describe the categories of workers who are protected by labour legislation
 define the term “employer”
1.1 PRESCRIBED MATERIAL
 chapter 2 of the prescribed book

 Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832
(LAC)
1.2 INTRODUCTION
In this study unit, we discuss the protection of employees in terms of labour

legislation. Note that only employees are protected by labour legislation. It is therefore
important to draw a distinction between employees and other workers, for example
independent contractors. You should also understand that only an employment
relationship falls under the protective scope of labour laws. The employment
relationship in South Africa is regulated in terms of the Constitution, international law
(section 39 of the Constitution), labour legislation (mainly the LRA, the EEA and the
BCEA) and law of contract (which is regulated by common law). The Constitution is
the supreme law in South Africa and, therefore, the interpretation and the application
of legislation and common law must be consistent with constitutional values and
principles such as fairness and equity (i.e. good faith) (refer to Everfresh Market
Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd (2012) 1 SA 256 (CC). In this case, the
court missed an opportunity to make it a requirement to bargain in good faith. There
were clear signs that if the argument had not been raised for the first time in the
Constitutional Court (CC), the CC would have ruled on it and the ruling would have
been that parties indeed need to bargain in good faith. The CC refused to remit the
matter back to the High Court for a determination on the issue of development of
common law in terms of section 39(2) of the Constitution. (Refer to paras 23, 48, 61,
71 and 72.) What this would have meant is that all contracts, including employment
contracts, would have been required to be concluded in good faith and therefore in
accordance with constitutional norms and values. The demand for the new
constitutional order also receives legislative support through, for instance, the
Consumer Protection Act, 2008. These values are well expressed and captured in the
concept of ubuntu, which recognises a person’s status as a human being who is
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entitled to unconditional respect and dignity. Ubuntu also carries with it ideas of
humaneness, social justice and fairness.1
In this study unit, we look at the impact of common law on a contract of employment,
which is the foundation of the employment relationship.
It is important to note that the interests of society change as times change. South
Africa has seen a number of changes, in that it is now a democratic country with a
new Constitution. Some of the old principles, which are not in line with the new
constitutional order, had to change. For instance, a common law contract of
employment had no regard to fairness or equity, which are important values in our
Constitution.2
In this study unit we also look at the impact of common law on the employment
relationship. After you have completed this study unit, you should therefore
understand: how common law is applied in South African labour law; how a contract
is concluded and terminated; the duties and rights of the employer and the employee;
how a contract can be breached and the remedies for breach of contract; the
application of a restraint of trade; and vicarious liability.
1.3 IMPORTANT MATTERS TO UNDERSTAND
1.3.1 An employee and an independent contractor
Study paragraphs 1 and 2 of chapter 2 of the prescribed book.
It is important to know the difference between an employee and an independent

contractor for the purposes of applying labour laws. Both the LRA (s 213) and the
BCEA (s 1) define “employee”. Note that the definition includes employees in the
private and public sectors, domestic workers and farm workers. It also includes any
person who in any manner assists in carrying on or conducting the business of an
employer. However, a definition of “independent contractor” is currently not provided
in any legislation.
1 “Ubuntu” is explained in S v Makwanyane (1995) 3 SA391 (CC) at para 237 and 308. It is an isiZulu
word, but it also used in other South African languages, e.g. as botho amongst the Sesotho speaking
people.
2 In Paiges v Van Ryn Gold Mines Estates (1920) AD 600, the court held that the courts were not allowed
to intervene even if it can be established that stipulations in the employment contract are against the
interests of the employee (see also Smit v Workmen’s Compensation Commissioner (1979) 1 SA 51 (A) at
64B). However, the common law has been developing over time, and public policy terms are now implied
in a contract of employment (for instance, the right to fair labour practice in terms of section 23 of the
Constitution) and given effect by labour laws. In addition to this, and most importantly, fora such as
the Commission for Conciliation Mediation and Arbitration, (the CCMA, whose friendly, inclusive and
humane processes symbolise the kgoro system) and labour courts have been introduced. Kgoro is an
African communal process or structure where community matters are resolved with the aim of attaining
amicable solutions – a higher premium is placed on continuity of relationships than on punishment or
interventions that may end relationships. Here matters are conciliated, then mediation follows if parties
fail in conciliation and later arbitration. Labour courts are also in place to ensure fair labour practice.
Furthermore, a dissatisfied party may still take a matter on appeal or review. These processes are
symbolic of the ethos of ubuntu because parties in employment relationships are guided by the values
of fairness, human dignity and social justice.
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Why do you think the distinction between an employee and an independent contractor is
important?
Moreover, the following tests have been developed by the courts and are used to
determine who is an employee and who is an independent contractor: the control test,
the organisation test, the dominant impression test, the economic capacity test and
the reality test. You must be able to differentiate between these tests and to apply
them in a practical situation.
However, the LRA and the BCEA (s 200A and s 83A respectively) contain a rebuttable
presumption as to who is presumed to be an employee and who is not. You must
remember that in terms of this presumption, a person who works for or renders
services to another is presumed to be an employee if one or more of the factors
stipulated in these sections are present. These presumptions are in line with the
International Labour Organisation’s Employment Relationship Recommendation, 2006
(No 198), which is aimed at dealing with and protecting employees against disguised
employment relationships. A disguised employment relationship occurs when parties
or one of the parties to an employment relationship label the relationship as one other
than an employment relationship with the aim of avoiding the application of labour
laws to such a relationship.
ACTIVITY 1
Alto is employed by Brian to build a wall that is 250 metres long. Brian agrees to pay
Alto R15 000 upon completion of the work. Alto will build the wall according to his
schedule as he has other work to do for Chris and Doris.
Discuss whether Alto is Brian’s employee or an independent contractor. In your

answer you must discuss the tests used by the courts.
FEEDBACK 1
An independent contractor is contracted to perform a specified task, while an

employee is appointed to render personal services in terms of a job description. The
courts formulated the following tests to determine whether a person is an employee or
not: the control test, the organisation test, the dominant impression test, the economic
capacity test and the reality test. An employee is therefore under the employer’s
control and is part of the employer’s organisation, and so on, whereas an independent
contractor is not. From this, one can conclude that Alto is an independent contractor
and not an employee. Refer to pages 22–23 of the prescribed book.
1.3.2 Non-standard employees
Study paragraph 4 of chapter 2 of the prescribed book.
Non-standard employees are regulated and protected in terms of Chapter IX of the

LRA. In terms of the recent amendments to the LRA, there are three categories of non-
standard employees, namely, temporary employment services (temporary employees),
fixed-term employees and part-time employees.
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ACTIVITY 2
Khathu is employed by BB Manufacturers to repaint their workshop. Discuss whether

he will qualify as a fixed-term employee or not.
FEEDBACK 2
A fixed-term employee’s contract of employment terminates at the occurrence of a

specified event or the completion of a specified task or project or on a fixed date, other
than the employee’s normal or agreed retirement age. Khathu is only employed to
repaint the workshop, which means that once his job at BB is completed, his
employment will come to an end. Khathu is therefore employed on a fixed-term
contract. Refer to paragraph 4.2 of chapter 2 of the prescribed book.
1.3.3 Employees excluded from the LRA
The following categories of employees are excluded from the LRA:
 members of the South African National Defence Force (SANDF)

 members of the State Security Agency (SSA) (refer to p 33 (footnote 32) of the
prescribed book for services that fall under the SSA)
Section 2 of the LRA excludes these employees from the application of the LRA. These
employees are excluded from the scope of the definition of “employee” in the LRA. The
BCEA also excludes these employees, but the EEA does not. Take note that the
exclusion of the SANDF only relates to uniformed members, which means the LRA is
applicable to supporting staff members such as administrative employees and
cleaners.
1.3.4 Protection and regulation of illegal and foreign workers
Take note that illegal workers are not employees for the purposes of the LRA and
therefore cannot receive any protection under the Act. It is, however, also important to
note that illegal workers may still receive protection under section 23 of the
Constitution. In this regard, study paragraphs 6.1 and 6.2 of chapter 2 of your
prescribed book (where the Kylie and Discovery cases are discussed).
What is your opinion about the Kylie and Discovery decisions?
The Constitution protects everyone’s rights, including workers’ rights. This protection
extends to illegal workers and foreign workers. These employees are open to
exploitation by employers and are often excluded from access to benefits such as
unemployment insurance and workmen’s compensation and therefore need protection.
In terms of the principles of ubuntu and humanity, vulnerable persons should be
protected. The phenomenon of migrating workers is increasing worldwide, especially in
the member states of the Southern African Development Community (SADC). South
Africa is one of the major receiving countries of migrants in Southern Africa. Migrant
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workers are vulnerable workers because they are often without documentation and
therefore susceptible to exploitation.
Please note that the Employment Services Act 4 of 2014 (ESA) has been introduced.
The ESA defines the term “foreign national” and regulates the employment of
foreigners in South Africa. The Act sets out the conditions that have to be complied
with before a foreign national may be employed in South Africa. The ESA also
regulates private employment agencies and public employment services. Relevant
aspects relating to this Act are discussed in paragraph 6.3 of chapter 2 of the
prescribed book.
1.3.5 Definition of “employer”
Note that a definition of “employer” is currently not provided in any of the existing
labour legislation.
1.3.6 The position of temporary employment services (TES)
The use and adverse effects of labour broking have been topical issues in the labour
law space in South Africa and elsewhere in the world. As a result, legal provisions
were developed to regulate and protect TES employees against abuses and exploitation
by brokers and client companies. Of importance, too, is that the Labour Appeal Court
recently stated that section 198A of the LRA is meant to ensure that TES (deemed)
employees, firstly, are not treated differently from employees employed directly by the
client (one can think of the principle of “equal work, equal pay”) and, secondly, are
integrated into the enterprise as employees of the client.
Do you think that employees employed by labour brokers are well protected by labour
legislation in South Africa?
1.3.7 Employment Tax Incentive Act 26 of 2013
Take note of the Employment Tax Incentive Act 26 of 2013, which came into operation
on 1 January 2014. This Act encourages companies to employ young people between
the ages of 18 and 29 by granting them tax incentives. It is hoped that such young
employees (mostly graduates) will gain the necessary skills and practical experience
that will increase their employability and enable them to take up employment
elsewhere later.
1.4 SELF-ASSESSMENT QUESTIONS
QUESTIONS
1. Define “contract of employment”.

2. Define “employer” (including “labour broker”).
3. Are illegal workers protected in South Africa?
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STUDY UNIT 2
THE IMPACT OF COMMON LAW ON CONTRACTS OF
EMPLOYMENT
OUTCOMES
After you have completed this study unit, you should be able to
 explain a restraint of trade clause in an employment agreement

 list and to explain the duties of the employee
 list and to explain the duties of the employer
 explain the doctrine of vicarious liability and to apply the relevant principles in a
practical situation
 explain different forms of breach of contract and to apply the relevant principles
in a practical situation
● chapter 3 of the prescribed book
2.2 INTRODUCTION
A contract of employment, just like any other type of contract, is regulated by common
law. Note that in cases where a specific labour matter is not covered by the LRA or any
other labour legislation, common law will apply. In order for a contract of employment
to be valid, the parties to the contract must have satisfied all of the following common
law requirements for the conclusion of a valid contract: both parties must agree; they
must have capacity to enter into the contract; the contract must be lawful and
possible to perform; and, where there are formalities that were agreed upon by the
parties, all those formalities must have been satisfied. Remember, however, that the
law does not require a contract of employment to be in writing.
2.3.1 Duties of employers and employees
Study paragraph 2 of chapter 3 of the prescribed book, which deals with the duties of
employers and employees.
Employer and employee duties flow from the contract of employment, labour
legislation, common law and collective agreements. In an employment relationship, the
primary duty of the employee is to make his or her services available to the employer,
and the duty of the employer is to remunerate the employee for making his or her
services available to the employer. It is therefore important to understand that it is not
necessary for the employee to perform actual work in order to receive remuneration.
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2.3.2 Vicarious liability
In terms of this doctrine, an employer may be held liable for the wrongful acts or
omissions of an employee that were committed in the course of the employee’s
employment, provided certain requirements have been met. In other words, the
employer is held accountable for the wrongs committed by the employee in advancing
or serving the interests of the employer. The common law principle of vicarious liability
is informed by twofold policy considerations, namely, holding employers liable to just
and adequate compensation for harm caused by employees to third parties while doing
the employer’s job, and inciting employers to take active steps to prevent their
employees from harming members of the broader community – that is, it plays a
compensatory and deterrent role.
Vicarious liability links well with ubuntu and with African norms that are
encapsulated in the following proverb: Kgomo e wetswa ke namane ko bodibeng.
This essentially means that if a child from household A has caused damage to
household B, his or her parents should be held liable. In the employment context, an
employee would take up the position of the child and an employer the position of the
parent, simply because employers have control over their employees. Also of
importance is the fact that employees are typically under-resourced and may not be
able to pay damages to third parties when such is due. Therefore, employers would, in
terms of vicarious liability, be called in to pay damages and would use the inherent
disciplinary power they have over employees to get recourse from those employees who
were wrongdoers. This is fair to all parties and resonates with the culture of
humaneness, human dignity and respect for others.
Do you think it is fair or unfair to hold employers vicariously liable for the wrongdoings
of their employees?
Make sure that you know the requirements that must be met in order for an employer
to be held liable for an employee’s wrongful conduct.
ACTIVITY 1
Thando is a porter at Bophelo Hospital in Thembisa. Rhoda is admitted to the hospital

due to an injury on her left leg. Rhoda falls and injures her right leg while Thando
tries to help her into a wheelchair.
Discuss whether Bophelo Hospital will be held vicariously liable for Rhoda’s injuries.
FEEDBACK 1
The doctrine of vicarious liability is based on the principle that an employer has to
compensate those who suffer injury as a result of the wrongful conduct of its
employees. Vicarious liability protects third parties. Yes, Bophelo Hospital will be held
liable for Rhoda’s injuries.
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2.3.3 Effect of the contract of employment on the employment relationship
2.3.3.1 Contract principles
Study paragraph 4.2 of chapter 3 of the prescribed book.
In order to be valid, a contract of employment must meet all the requirements

prescribed by law for the conclusion of a contract. The requirements that must be met
for a contract to be valid are as follows:
 There must be consensus between the parties.

 The parties to the contract must have capacity to act.
 The agreement must be legally possible.
 Performance under the agreement must be physically possible.
 If there are formalities in terms of the contract, they must be met.
Do you think it is necessary to have these requirements for a contract to be valid?
2.3.3.2 Breach of contract and remedies
Where either of the two parties to an employment contract fails to perform in terms of
the contract, the failure might amount to breach of contract.
You must know what constitutes breach of contract and the remedies available to the
innocent party in the case of breach. Indeed, it is only fair that lawful contracts
entered into by parties should be honoured. Moreover, in accordance with
Africanisation and ubuntu, people who have agreed on something or promised each
other something should be responsible and faithful enough to make good on their
undertaking, otherwise there may be consequences.
Can you think of any example of a breach of contract by an employee?
2.3.3.3 Restraint of trade
A restraint of trade clause is included in a contract of employment to protect the

employer’s interests during the time that the employer employs the employee and after
the employment relationship has ended. Restraint of trade is founded on the values of
fairness, which dictate that people must compete fairly for available commercial
opportunities. Ubuntu also discourages people to bite the hand that feeds them.
Keep in mind, however, that the courts will not enforce a restraint of trade against an
employee if the employee can prove that the restraint is unlawful or unreasonable.
Remember also that there are factors that need to be considered in determining the
reasonableness of a restraint of trade clause.
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Do you think such as clause is necessary in an employment contract? Is it not unfair to

the employee?
ACTIVITY 2
Adri is employed by Beauty Salon as hair stylist. In terms of her contract of

employment, if she resigns, she will not be allowed to start a similar business within a
distance of 50 km from Beauty Salon for a period of two years. Discuss whether this
will qualify as a restraint of trade agreement.
FEEDBACK 2
Yes, this will qualify as a restraint of trade agreement. The purpose of a restraint of
trade agreement is to protect the employer’s trade secrets, goodwill and business
connections. A restraint of trade agreement usually lasts a certain period and covers a
certain geographical area.
2.3.3.4 Changes to the terms and conditions of employment
There are several ways in which the terms and conditions of an employment contract
can be changed by the parties to the contract. Neither of the parties, but especially the
employer, can arbitrarily change the terms and conditions of the contract of
employment.
Make sure that you understand the ways in which the terms and conditions of
employment can be changed.
2.4 SELF–ASSESSMENT QUESTIONS
QUESTIONS
1. Discuss an employer’s duty to provide an employee with work.

2. What are the remedies for breach of contract?
3. Will Mpho be able to enforce a contract she concluded with Sarah to murder
Sarah’s business rival?
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STUDY UNIT 3
THE BASIC CONDITIONS OF EMPLOYMENT ACT
OUTCOMES
 explain the purpose and the scope of the BCEA

 list employees who are excluded from the BCEA
 explain minimum terms and conditions of employment such as working hours,
different forms of leave, Sunday and holiday work and night work
 discuss whether children are at all allowed to work
 discuss the variation of terms and conditions of employment and which terms
may not be varied
3.2 INTRODUCTION
In the previous study unit we dealt with the effect of common law, law of contract and
customs in the workplace, but legislation has an important effect on the working
relationship too. In this study unit we discuss the effect of the BCEA.
The BCEA sets minimum terms and conditions of employment for employees. An
employer must give an employee at least these minimum entitlements. You must know
the various provisions regarding all the minimum working conditions. These
provisions are set out in detail in the prescribed book.
Remember that an employer can always provide terms and conditions that are more
beneficial, but not less favourable than those in the BCEA.
Child labour is an important topic in this study unit. Remember that the BCEA
prohibits forced labour.
You must know the enforcement mechanisms that the inspectors of the Department of
Labour and the labour courts use when an employer does not comply with the
provisions of the BCEA.
The BCEA establishes obligatory basic/minimum conditions of employment. It

regulates the variation of such conditions by means of different mechanisms (within
the parameters of a policy of “regulated flexibility” – a framework within which a
balance can be struck between the interests of employers and employees in relation to
work security).
The minimum terms and conditions of employment that the Act sets constitute terms
of employment contracts. In general, employers and employees may deviate from these
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minimum conditions to improve conditions for employees, but not to provide less
beneficial conditions.
The BCEA is applicable to almost all employees. Because it has such a broad scope of
application, it protects employees who have little bargaining power as individuals.
Nonetheless, the BCEA provides for the variation of conditions of employment. This
also applies to employees who are members of trade unions (with greater bargaining
power), who are able to negotiate better conditions of employment for their members
than those contained in the BCEA.
Take note that certain employees are totally excluded from the Act, while others are
partially excluded.
Some employees are subject to ministerial and sectoral determinations and collective
agreements that regulate, for example, wages, but may in addition have other
conditions of employment that are regulated by the BCEA. In such cases, the BCEA
must be read in conjunction with the relevant determination and/or collective
agreement to determine the employees’ terms and conditions of employment.
Basic conditions of employment in general ensure that workers are treated fairly and
that their terms and conditions of employment are not below the minimum terms.
However, certain terms and conditions may be varied, especially if they become more
favourable to workers. This shows that the values of ubuntu such as fairness and
human dignity are echoed in the BCEA.
3.3.1 Introduction
The BCEA gives effect to the constitutional right to fair labour practices, in that it
 establishes and enforces basic conditions of employment

 regulates the variation of such conditions by means of different mechanisms
A basic condition of employment in the BCEA constitutes a term of any contract of

employment, except to the extent that
 any other law provides a term that is more favourable to the employee
 the basic condition has been replaced, varied or excluded in accordance with the
Act, or
 a term of the contract is more favourable to the employee than the basic
condition of employment
3.3.2 Scope of application
You must be able to recognise which employees are fully excluded from the Act,
namely
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 members of the South African National Defence Force

 members of the State Security Agency
 unpaid volunteers working for charitable organisations
(The State Security Agency is made up of Electronic Communications Security (Pty)

Ltd, the South African National Academy of Intelligence, the National Intelligence
Agency and the South African Secret Service – s 3(1A) of the Intelligence Services Act
65 of 2002.)
The following persons are also excluded:
 people undergoing vocational training, except to the extent that any term or
condition of their employment is regulated by the provisions of any other law
 people employed on vessels at sea
 independent contractors
Why do think the above employees should be excluded from the BCEA?
Certain groups of employees, for example senior managerial employees and sales staff
who travel to the premises of customers and who regulate their own hours of work, are
partially excluded. Further, employees who work for fewer than 24 hours a month for
an employer are excluded from Chapter 3 of the BCEA, which regulates leave.
It is important to bear in mind that some employees are subject to sectoral and
ministerial determinations and collective agreements that regulate, for example,
wages, but may in addition have other conditions of employment that are
regulated by the BCEA. In such instances, the BCEA must be read in conjunction
with the determination/s and the collective agreement to determine the employees’
terms and conditions of employment.
ACTIVITY 1
Zaza is employed as a clerk at the provincial headquarters of the SANDF in Pretoria.

Discuss whether she is excluded from the application of the BCEA.
FEEDBACK 1
If Zaza is not a member of the SANDF but a mere employee, she may be covered by the
BCEA. The BCEA does not apply to certain employees, including
 members of the defence force

 members of the State Security Agency (see paragraph 2 of chapter 4 of the
prescribed book)
3.3.3 Minimum conditions of employment
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For your convenience, the summaries regarding all conditions of employment and
relevant exclusions that are provided in the prescribed book are largely repeated here.
You must study all these provisions and be able to apply them in practice.
(a) Working time
Regulation
● A maximum of 45 hours a week.
Maximum working
● If an employee works five days a week or less, he or she may not work more
than nine hours a day.
hours
● If an employee works six days or more a week, he or she may not work more
than eight hours a day (these hours include an hour-long lunch break).
● These hours may be extended by agreement by up to 15 minutes a day, but
no more than an hour per week, if employees serve members of the public.
An employee is entitled to a meal interval of at least one hour after five hours of
continuous work.
Lunch
The meal interval can, by agreement, be reduced to 30 minutes, or be done

away with if the employee works fewer than 6 hours per day.
A maximum of 10 hours per week, which may be increased to a maximum of 15

hours a week by collective agreement.
Overtime
An employee may work overtime only by agreement.

An employee working overtime has to be paid 1½ times the normal pay or get
1½ hours time off for every hour worked.
An agreement to work overtime may not be for more than a total of 12 hours
(ordinary hours plus overtime) on any particular day.
The employee has to be paid double the normal rate of pay. If the employee
normally works on Sundays, he or she has to be paid 1½ times the normal
Sundays
rate. In terms of the Public Holidays Act 36 of 1994, an employee may exchange
a public holiday for any other working day that is agreed to by the employer. An
employer may elect to give the employee two hours off for every hour worked
instead of double pay.
Night work is work that is performed after 18h00 and before 06h00 the next
day. It can only be worked in terms of an agreement. The employee must be
Night work
given
 an allowance, or
 a reduction in hours of work, and
 be provided with transport between his or her place of residence and the
workplace
An employee is entitled to
Rest periods
 a daily rest period of 12 hours between ending and recommencing work, and
 a weekly rest period of at least 36 consecutive hours, which – generally – has
to include Sundays
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The parties may agree that the employee will work up to 12 hours a day
(including a meal interval) without receiving overtime pay, provided that the
Compressed work week
employee does not work

 more than 45 ordinary hours in any week
 more than 10 hours’ overtime in any week, or
 more than five days in any week
Ordinary hours and overtime can be averaged over a period of up to four
months in terms of a collective agreement.
Averaging of working hours and overtime is allowed where hours are
calculated over a period of time. This is to cater for peak periods in certain
sectors such as agriculture, where employees may agree to extended hours of
overtime to a maximum of 15 hours per week during harvest time, which will
no longer be necessary and not followed after harvest time.
(b) Leave
The BCEA makes provision for a minimum of 21 consecutive (calendar) days’

Vacation
leave
paid vacation leave (excluding public holidays) per year for most employees,
which amounts to 15 working days. Employers and employees may agree on
additional leave, either paid or unpaid.
An employee is entitled to four consecutive months’ unpaid maternity leave,
which may commence at any time from four weeks before the expected date of
birth or on a date that a medical practitioner or a midwife certifies is necessary
for either the health of the employee or the health of her unborn child.
Maternity leave
An employer may decide to pay an employee during maternity leave, which is

allowed since it is more beneficial than the provisions of the Act. If an employee
does not receive paid maternity leave, she may claim maternity benefits from
the UIF. An employee may not work for six weeks after the birth of her child. If
an employee miscarries in the third trimester of her pregnancy or has a
stillborn child, she is entitled to six weeks’ leave after the miscarriage or
stillbirth.
The BCEA does not make provision for paternity leave, but it may be covered
under family responsibility leave.
An employee is entitled to 3 days’ family responsibility leave for every 12
Family responsibility
months worked. Family responsibility leave may be taken when an employee’s

child is born or is sick OR in the event of the death of the employee’s spouse or
life partner, parent, adoptive parent, grandparent, child, adopted child,
grandchild or sibling. No provision is made for leave to be taken in the event of
the death of in-laws.
This type of leave is available only for employees who have worked for longer
than four months and who work at least four days a week. Employers may
agree to more than the minimum of three days’ family responsibility leave but
not less.
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A sick-leave cycle is three years. The number of days’ sick leave in a sick-leave
cycle is calculated as the number of days that an employee would normally
work in six weeks. If, for example, an employee works 5 days a week, he or she
Sick leave
will work 30 days in 6 weeks and that will entitle him or her to 30 days’ sick
leave in 3 years.
If an employee has been absent from work for more than two consecutive days,
or on more than two occasions in an eight-week period, the employer may
request the employee to submit a medical certificate. Such a certificate may
be issued and signed by a medical doctor or another person who is certified to
diagnose and treat patients and is registered with a professional council.
Why do you think it is important to have basic conditions of employment for employees?
(c) Other matters
For the sake of convenience, the summaries regarding wages, notice periods,
severance pay and certificates of service that are provided in the prescribed book are
largely repeated here. You must study all these provisions and be able to apply them
in practice.
Neither the BCEA nor any other law stipulates minimum wages for employees.
However, collective agreements concluded in bargaining councils and ministerial
and sectoral determinations may establish minimum wages, and employers and
employees will then be bound to contract in terms of these minimum standards
Payment of wages
or more favourably by agreement.

An employee must be paid in South African currency daily, weekly, fortnightly
or monthly, and in cash, by cheque or by direct deposit into a bank account of
the employee. The employer must provide the employee with information in
writing regarding the period for which the payment is made, the amount of pay,
the amount and reason for any deduction that has been made and the
calculation of the employee’s pay in general.
On 7 February 2017 Deputy President Ramaphosa and the majority of trade
unions and trade union federations agreed on a national minimum wage. The
national minimum wage is set as R20 an hour or R3 500 monthly national wage
for most categories of workers, effective from beginning of January 2019.
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Either the employer or the employee may terminate a contract of employment

for an indefinite period by giving notice of intention to terminate the contract.
Notice must adhere to the notice periods required in terms of the contract.
However, if the contract does not make provision for a notice period, both the
employer and the employee have to comply with the minimum notice periods
provided by the BCEA.
The BCEA provides that a contract of employment must be terminated in writing

Notice periods
and by way of a notice period of not less than

 one week, if the employee was employed for six months or less
 two weeks, if the employee was employed for more than six months but not
for more than one year
 four weeks, if the employee was employed for one year or more, or is a farm
worker or a domestic worker who was employed for more than six months
While notice periods may generally not be shortened, the period of four weeks’
notice may be reduced to two weeks by collective agreement. In addition, the
BCEA allows an employer to pay an employee an amount equivalent to the
salary the employee would have earned during the notice period, instead of
requiring the employee to work during such period.
When an employee is dismissed based on the operational requirements of the
Certificate Severance pay
employer in terms of the LRA (refer to chapter 10 of the prescribed book), the
employer must pay the employee severance pay equal to at least one week’s pay
for each completed year of continuous service with that employer. An employee
who unreasonably refuses to accept an offer of alternative employment with that
employer or any other employer is not entitled to severance pay.
An employer is required to provide an employee with a certificate of service when
of service
the employment ends. Such certificate may state, among other things, the date
of commencement of work, the job description and the remuneration at the time
of termination. The reason for termination of employment may be stated only at
the employee’s request.
Study paragraph 3.3.5 of chapter 4 of the prescribed book regarding the payment of
contributions to benefit funds
ACTIVITY 2
Under which circumstances must an employer pay an employee severance pay?
FEEDBACK 2
Severance pay is paid when an employee is dismissed based on the operational

requirements of the employer. The employer is required to pay the employee severance
pay equal to at least one week’s pay for each completed year of continuous service
with that employer. However, an employee who unreasonably refuses to accept an
offer of alternative employment with that employer or any other employer is not
entitled to severance pay.
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3.3.4 Children and forced labour
Note that children under the age of 15 years may not work, except in certain
circumstances:
 Children younger than 15 years may perform in advertising, sporting and artistic
activities, but only in terms of regulations issued by the Minister of Labour.
 The remuneration of a child must be paid to her or his parent or guardian.
 The maximum hours of work are four hours per day for a child older than ten
years and three hours per day for a child younger than ten years.
 Rest periods must be provided for working children: for children older than ten
years, after two hours of continuous work and for children younger than ten years,
after one-and-a-half hours of continuous work.
 Nutritious food and drinks must be provided to children when they work.
 Safe areas for rest and play must be provided for working children.
 Safe transport must be provided between children’s homes and their workplaces.
Nobody may be forced to work since the BCEA prohibits slavery and forced labour.
Children younger than 15 years are also allowed to
 collect contributions on behalf of a fund-raising organisation

 perform voluntary work for a church, a charitable organisation or an amateur
sports club
 do work that is appropriate for a person of that age as part of her/his schooling.
Do you think children should work or not? If your answer is “yes”, from which age do
you think they can work and why?
The BCEA also prohibits the employment of children under the age of 15 years. It only
permits the employment of children in certain exceptional circumstances. The
limitations have been put in place to protect children from exploitation and from being
exposed to dangerous environments. These provisions are evidence of care,
compassion and fairness, which are inherent in ubuntu. Subjecting children to
inappropriate working conditions is inhumane and abusive.
Note that the BCEA also prohibits exploitative practices by employers. Study
paragraphs 3.5 and 3.6 of chapter 4 of the prescribed book.
3.3.5 Enforcement of the BCEA
There are two ways in which to enforce the BCEA, namely
(1) by the courts

(2) by inspectors of the Department of Labour
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You must know the powers of the courts and inspectors in their endeavours to enforce
the Act. Also note that the Labour Court has exclusive jurisdiction in respect of all
matters in terms of the BCEA.
3.3.6 Variation of basic conditions
Remember that the BCEA allows for some terms and conditions of employment to be
varied (and in different ways); however, core terms may not be varied. The core terms
are
 maximum working hours

 provisions relating to night work
 provisions relating to sick leave
 four months’ maternity leave
 a minimum of two weeks’ annual leave
Except for these core rights, the BCEA allows for changing, replacing or excluding
other rights by way of
 collective agreements
 ministerial determinations
 sectoral determinations
You must understand
 how these various mechanisms operate

 in what circumstances they are used
QUESTIONS
1. Does the BCEA provide for paternity leave?

2. May children under the age of 15 years work at all?
3. Which provisions of the BCEA may not be varied?
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STUDY UNIT 4
THE EMPLOYMENT EQUITY ACT
OUTCOMES
 explain unfair discrimination and to apply the relevant principles in a practical

situation
 distinguish between direct and indirect discrimination
 name and to discuss the sources of law that regulate discrimination in the
workplace
 explain the purpose of the Employment Equity Act 55 of 1998 (EEA)
 know defences against unfair discrimination
 know the beneficiaries of affirmative action
 know designated employers for purposes of affirmative action
 know other forms of discrimination that are prohibited by the EEA, such as
harassment and medical testing
4.2 INTRODUCTION
This study unit deals with the EEA and its twofold purpose, namely, to prohibit unfair
discrimination against employees and to ensure the implementation of affirmative
action measures in the workplace. The Act should be read against the background of
the provisions of the Constitution relating to equality.
4.3.1 Equality and the Constitution
The Constitution of the Republic of South Africa, 1996, is founded on different values,
which include equality and human dignity (refer to s 1 of the Constitution). Equality is
further expressly provided for in terms of section 9 of the Constitution. Furthermore,
the EEA was enacted to give effect to the constitutional value of equality (refer to the
EEA).
The EEA goes a long way towards ensuring that employment opportunities benefit the
people of South Africa fairly and equally without unfair discrimination. This is in line
with the Constitution, principles of ubuntu and the international obligation that South
Africa has by virtue of being a member state of the International Labour Organisation
(ILO). Examples of ILO standards in this regard are Convention 111 on Discrimination
(Employment and Occupation) and Convention 100 (Equal Remuneration). These
conventions are against any form of unfair discrimination in employment and are
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given effect through the EEA and the Constitution of the Republic of South Africa. The
Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), 2000,
discourages other forms of unfair discrimination in all spheres outside the
employment environment.
The Constitution provides for the prohibition of unfair discrimination on a number of

(non-exhaustive) grounds and authorises affirmative action. It therefore embraces both
the notion of formal equality, which prohibits unfair discrimination, and substantive
equality, which requires affirmative action.
The EEA follows the Constitution and is the most important law on equity in the
workplace. The Act has a twofold purpose, namely, to protect employees against unfair
discrimination and to ensure the implementation of affirmative action measures by
designated employers for designated employees.
The EEA discourages discrimination and introduces affirmative action, which is aimed
at remedying the injustices of the past that were caused by the apartheid system. It
requires that suitably qualified people from the designated groups be given equal
employment opportunities and be equitably represented at all levels. This promotes
fairness and ubuntu, in that social justice and human dignity are restored to those
who were previously disadvantaged.
Make sure that you understand the terminology below.
4.3.2 Basic terminology
(a) Formal and substantive equality
As stated above, South Africa only embraced equality in the new constitutional order.
The equality section of the Constitution prohibits unfair discrimination on a number
of non-exhaustive grounds (formal equality) and authorises affirmative action
(substantive equality).
Formal equality protects individuals against unfair discrimination and is called

“equality in treatment”. In accordance with formal equality, all people must be treated
the same and individual ability is viewed as the only factor relevant to achieving
success in society.
Substantive equality focuses on equality of outcome. The social and economic

conditions of groups and individuals (based on, for example, race and gender) are
taken into account since these factors often determine a person’s place/position in
society.
(b) Differentiation and discrimination
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A distinction must be drawn between differentiation and discrimination.

Differentiation (in the sense of treating people differently) does not necessarily
constitute discrimination. In the workplace, it often happens that employees are
treated differently based on, for example, their skills and qualifications. This would
not amount to unfair discrimination. Discrimination therefore appears to be a
particular form of differentiation that is based on illegitimate grounds.
Do you think this distinction is necessary? Can you think of an example of

differentiation?
As to what would constitute illegitimate grounds, there are two possibilities, namely,
the so-called
(1) specified/listed grounds (such as race, sex, religion and pregnancy)

(2) unspecified/unlisted grounds
The specified grounds are all listed in the EEA. As far as the unspecified grounds are
concerned, it was held in Harksen v Lane NO 1997 11 BCLR 1489 (CC) that there will
be discrimination on an unlisted ground if it (the discrimination) is “based on
attributes or characteristics which have the potential to impair the fundamental
dignity of persons as human beings, or if it affects them adversely in a comparably
serious manner”.
“Dignity” is therefore the underlying consideration in determining whether

differentiation has turned into discrimination.
In summary, all illegal grounds have the potential to demean people.
(c) Direct and indirect discrimination
Study paragraph 2.2.2 of chapter 5 of the prescribed book.
The EEA prohibits both direct and indirect discrimination. The difference between
the two is well documented. Direct discrimination occurs when a person is overtly
treated differently because of, for example, his or her race. Usually, direct
discrimination is easy to recognise. The real reason for the unfair differentiation is
usually (although not always) known by the perpetrator of the differentiation.
Indirect discrimination occurs when criteria or policies are applied that appear to be
neutral, but that unjustifiably affect a disproportionate number of members of a group
based on, for example, race. Indirect discrimination is often disguised and difficult to
detect. An example of indirect discrimination is if an employer requires that all window
washers be taller than 1,8 metres. On the face of it, there is no discrimination based
on sex in this instance, but the requirement indirectly discriminates against women
since few women are taller than 1,8 metres. Whether this discrimination is fair is
another matter – which is not relevant at the stage when it has to be established
whether discrimination occurred.
You must be able to explain the difference between direct and indirect
discrimination and to give an example of each.
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ACTIVITY 1
Distinguish between direct and indirect discrimination. Give an example of each that
is different from the one given above.
FEEDBACK 1
See paragraph 2.2.2 on pages 77–78 of the prescribed book.
(b) Specified and unspecified grounds for discrimination
Section 6(1) of the EEA provides a non-exhaustive list of 19 grounds on which

discrimination is prohibited in terms of policies or practices. They are race, gender,
sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour,
sexual orientation, age, disability, religion, HIV status, conscience, belief, political
opinion, culture, language and birth.
The list is similar to the grounds contained in the Constitution. However, note that
three more grounds have been included, namely, family responsibility, HIV status and
political opinion.
Examples of unspecified grounds from case law include mental health and
citizenship, because differentiation based on these grounds has the potential to impair
the dignity of the person.
For the most part, discrimination cases revolve around the specified grounds. The
reasons for this include the extensive lists in the EEA and the Constitution. A review
of the reported case law shows a dominance of alleged discrimination on the grounds
of race, sex and gender, pregnancy and marital status, interspersed with the odd case
involving family responsibility, sexual orientation, religion, political opinion, disability
and HIV/AIDS. Given our history, this pattern is hardly surprising. Fewer cases from
the courts have been reported that involve unspecified grounds.
Remember that discrimination can be based on more than one ground. Suppose, for
example, employer H refuses to employ applicant Moyo for a clerical post for which he
is fully qualified in terms of the requirements stated in the advertisement. Moyo is a
coloured, homosexual person and H prefers black, heterosexual employees. The
discrimination here is consequently based on two grounds, namely, (i) sexual
orientation and (ii) race. Remember that an applicant for employment is also regarded
as an employee.
4.3.3 Application of the EEA
The EEA must be interpreted in accordance with ILO Convention 111 in giving effect
to the equality provisions of the Constitution. The EEA applies to all employers as far
as the prohibition of unfair discrimination is concerned, but with regards to the
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application of affirmative action, it applies only to designated employers and

specifically excludes members of
• the South African National Defence Force

• the National Intelligence Agency
• the Secret Service
• the National Academy of Intelligence
• directors and staff of Comsec
Other related legislation that deals with equality include PEPUDA, the LRA and the
Broad-Based Black Economic Empowerment Act, 2003 (refer to the diagram on p 80 of
the prescribed book).
4.3.4 Purpose of the EEA
4.3.4.1 First purpose of the EEA: the prohibition of unfair discrimination
The EEA gives effect to the provisions of the Constitution regarding equality in
employment and therefore promotes the achievement of equality in the workplace.
(a) Establishing unfair discrimination
All unfair discrimination cases are dealt with in two stages:
(1) The first stage is concerned with establishing a factual foundation for the alleged
differentiation and the ground/s on which the differentiation took place (for
example, an employee was treated differently from another employee on the ground
that she is female). A link must be shown between the differentiation and the
alleged ground/s. The latter must be the reason for or the cause of the
differentiation (for example, the employee was treated differently because she is
female). Once such a link has been established, the differentiation becomes
discrimination – which is presumed to be unfair.
(2) In the second stage, the employer gets the opportunity to show that the alleged
unfair discrimination was indeed fair (the employer could show, for example, that
the employee needs certain qualifications and experience to do the job).
Remember that once differentiation on a specified or unspecified ground has been

shown, the claimant must establish a link between the differentiation and such
ground. Once a causal link has been established, a presumption of unfairness exists
and the employer will have an opportunity to show that the discrimination is not
unfair.
Study paragraph 4.1.1 of chapter 5 of the prescribed book regarding the onus of proof
for purposes of establishing unfair discrimination.
(b) Justification grounds for discrimination
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There are only two grounds of justification for discrimination, namely,
(1) affirmative action

(2) the inherent requirements of the job
Do you think there should be grounds on which an employee may be discriminated

against and, if so, why?
(c) Other specific forms of discrimination prohibited by the EEA
These forms of discrimination are discussed in detail in paragraph 4.1.3 of chapter 5

of the prescribed book. Make sure that you know the different forms of discrimination
and what the EEA prohibits.
(i) Harassment
Study paragraph 4.1.3(a) of chapter 5 of the prescribed book.
Remember that the EEA identifies harassment as a form of unfair discrimination

and prohibits it on any one or a combination of the grounds listed in the Act.
Sexual harassment often occurs in the workplace and although it is not defined in the
Act, the Code of Good Practice: Sexual Harassment defines it as unwelcome conduct of
a sexual nature that violates a person’s rights (such as dignity); conduct that
constitutes a barrier to equity; and action based on sex and/or gender and/or sexual
orientation (whether the conduct was unwelcome or not).
You must be able to recognise sexual harassment in the form of
 physical conduct (touching, fondling a person without his or her consent,

whistling, enquiring about a person’s sex life, sexual assault and rape)
 verbal conduct (hints, comments and sex-related jokes)
 non-verbal conduct (gestures, the display of sexually explicit pictures or e-mails
and indecent exposure)
An example of sexual harassment is found in Grobler v Naspers Bpk & another [2004]
5 BLLR 455 (C). Here, the plaintiff (a secretary) resigned after she had been sexually
harassed by her supervisor over a period of months. The harassment included
suggestive sexual remarks and physical contact in the form of hugging and kissing;
the plaintiff’s supervisor had also asked her out. The plaintiff made it clear to her
supervisor that his advances were unwelcome, but the harassment continued. The
traumatised plaintiff complained to management on a number of occasions, but no
help was provided, nor were disciplinary steps taken against her supervisor. After a
particular incident where her supervisor handed her a booking for a night’s stay at a
hotel, which was “all he wanted from her”, she again approached management. Only
then was a disciplinary hearing held and the supervisor dismissed. The plaintiff
successfully sued her employer for general damages, medical costs and compensation
for loss of income.
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Remember that an employer may be vicariously liable for acts of (sexual)

harassment committed by its employees against co-employees. The EEA specifies
certain conditions under which an employer may be held liable for such conduct by its
employees and conditions under which liability may be avoided. You must know these
conditions.
(ii) Liability of employers for employees’ discriminatory conduct
Study paragraph 4.1.3(b) of chapter 5 of the prescribed book.
After an employer has been made aware of a contravention of the EEA, it must take
the necessary steps to eliminate the alleged conduct. If the employer does not follow
the set procedure and cannot prove that it did all that was reasonably practicable to
eliminate the conduct, the employer will be liable.
(iii) Testing
You must know the different requirements for medical, psychological and HIV
testing as set out in the EEA and case law (which are discussed in your prescribed
book).
Do you think medical testing should be allowed in the workplace? If your answer is
“yes”, under which circumstances should it be allowed?
(d) Equal pay for equal work or work of equal value
Unlike the version of the EEA prior to amendment by Act 47 of 2013, the amended
EEA contains an explicit provision for equal pay for equal work or work of equal value.
In terms of the Act, the Minister may prescribe the criteria and the methodology for
assessing work of equal value to provide more clarity. Section 6(4) of the amended EEA
prohibits differentiation in the terms and conditions of employment between
employees of the same employer performing the same or substantially the same work
or work of equal value. The regulations made under the Act also provide some
guidelines to determine whether or not the work done by certain employees is similar
or substantially similar and therefore warrants equal payment. The aim is to give
effect to the constitutional commitment to equality. Previously, the issue of equal pay
for equal work or work of equal value was not regulated in any Act in South Africa. It
was, however, dealt with in Mangena & others v Fila South Africa (Pty) Ltd & others
[2009] 12 BLLR 1224 (LC). The Labour Court explained that
 paying an employee is an employment policy or practice in terms of the EEA

 paying an employee less than another employee for performing the same or similar
work based on a specified or an unspecified ground in terms of the EEA
constitutes less favourable treatment
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Therefore, any claim for equal pay for work that is the same or similar has to be
determined in terms of the EEA. The same is valid for claims for equal pay for work of
equal value.
To claim equal remuneration for work that is the same or similar, the claimant must
 identify a comparator
 establish that the work done by the comparator is more or less the same or similar
than that of the claimant
Where the claim is one of equal pay for work of equal value, the claimant must
 identify a comparator
 establish that the jobs of the comparator and the claimant, while different, are of
equal value (having regard to the degree of skill, physical and mental effort,
responsibility and other relevant factors)
 lay a proper factual foundation to enable the court to make an assessment of the
value to be attributed to the work in question and the tasks associated with it
Once this has been done, the claimant must establish a link between the
differentiation (being the difference in remuneration for the same work or work of
equal value) and a specified or unspecified ground. Once such a link is established,
section 11 of the EEA then requires the employer to show that the discrimination is
not unfair.
(e) Resolution of unfair discrimination disputes
Disputes about unfair discrimination must be referred to the CCMA within six months
after the alleged unfair discrimination. If a dispute remains unresolved after
conciliation, any party to the dispute may refer it to the Labour Court for adjudication.
The dispute may, however, be referred for arbitration if the parties agree.
If the Labour Court decides that there has been unfair discrimination against an
employee, the court may make any appropriate order that is just and equitable in the
circumstances, including
 the payment of compensation

 the payment of damages
 an order directing the employer to take steps to prevent the same/similar unfair
discrimination from occurring in the future in respect of other employees
4.3.4.2 Second purpose of the EEA: affirmative action
Remember that the EEA not only places a prohibition on unfair discrimination
(“formal equality”), but also gives effect to the Constitution’s notion of substantive
equality by providing for the implementation of affirmative action. Designated
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employers must implement affirmative action measures in terms of the EEA. Section
15 provides that affirmative action measures are measures designed to ensure that
suitably qualified people from designated groups have equal employment opportunities
and are equally represented in all occupational categories and levels in the workplace
of a designated employer.
ACTIVITY 2
Briefly explain under which circumstances affirmative action will be regarded as a

justification for allegedly unfair discrimination.
FEEDBACK 2
Only affirmative action measures that are consistent with the purpose of the EEA will
qualify as justification for discrimination in all occupational categories and levels in
the workplace of a designated employer. Such measures have to ensure
 equal employment opportunities

 equal representation
The EEA (s 15(2); par 5.2 of chapter 5 of the prescribed book) gives further direction as
to what must be included in affirmative action measures. It requires the employer to
take measures to
 identify and eliminate employment barriers that adversely affect people from
designated groups
 encourage diversity in the workplace
 make reasonable accommodation for people from designated groups
 ensure equitable representation of suitably qualified people from designated
groups
 retain and develop people from designated groups
 implement training programmes, including skills development
In terms of the Act, numerical goals are allowed but not quotas.
A number of judgments make it clear that affirmative action measures have to be

“designed” to achieve the realistic objective of equal representation in all occupational
categories and levels in the workplace.
Keep in mind that designated employers (study par 5.2.2 of chapter 5 of the prescribed
book) generally include larger employers, namely,
 those who employ more than 50 employees

 those who employ fewer than 50 employees, but who have an annual turnover as
stipulated in Schedule 4 of the EEA
 municipalities
 organs of state such as the SABC and Eskom
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 employers who have been appointed as designated employers in terms of a

collective agreement
Affirmative action measures apply only to suitably qualified people from designated
groups. Designated groups are black people (meaning African, Coloured and Indian
people), women and people with disabilities. In terms of a recent decision, “black
people” also include Chinese people. Note that the definition of designated groups
applies to South African citizens only. Study paragraph 5.4 of chapter 5 of the
prescribed book about the beneficiaries of affirmative action.
Do you think there is still a need for affirmative action in South Africa and, if so, why?
A member of a designated group must be “suitably qualified” to benefit from

affirmative action. “Suitably qualified” means that the person has one of the following:
 a formal qualification
 prior learning
 relevant experience
 the capacity to acquire, within a reasonable time, the ability to do the job
Remember that a person may be “suitably qualified” on the basis of any one or a
combination of these factors. Study paragraph 5.2.2(d) of chapter 5 of the prescribed
book.
There are formal and informal ways of monitoring the functions of designated
employers with regard to affirmative action. You must know these ways. Study
paragraph 5.2.3 of chapter 5 of the prescribed book.
You must also know the factors that have to be taken into account when determining
whether a designated employer is implementing employment equity in compliance with
the EEA. Note that people whose services have been procured for a client by a labour
broker are deemed to be employees of that client for purposes of affirmative action.
Lastly, you must know the powers of the Labour Court to enforce affirmative action.
4.4 SELF– ASSESSMENT QUESTIONS
QUESTIONS
1. What are the defences against unfair discrimination in terms of the EEA?
2. What is the meaning of “inherent requirements of the job”?
3. Distinguish between “differentiation” and “discrimination”.
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STUDY UNIT 5
UNFAIR LABOUR PRACTICES UNDER THE LABOUR
RELATIONS ACT
OUTCOMES
 define the term “unfair labour practice”

 explain each of the forms of unfair labour practice
 distinguish between “precautionary suspension” and “punitive suspension”
 define the term “occupational detriment”
5.2 INTRODUCTION
The focus of this study unit is on unfair labour practices (unfair acts or omissions by
an employer against an individual employee). Note that an employee cannot commit
an unfair labour practice against the employer. Unfair labour practices are discussed
separately from dismissals because they occur during actual employment.
Employees are afforded legal protection against unfair labour practices that might
occur. Unfair labour practices can relate to promotion, demotion, probation,
training, the provision of benefits, suspension, refusal to reinstate or re-employ
an employee in terms of any agreement and unfair conduct of the employer that
causes an employee to suffer an occupational detriment on account of a protected
disclosure. The Constitution, together with the LRA, affords employees protection
against unfair labour practices perpetrated by employers against employees.
It is important to note that the right to protection against unfair labour practices in
terms of the Constitution is wide, while protection against unfair labour practices in
terms of the LRA is capped. This means that the LRA provides a limited list of actions
that are included in the definition of an unfair labour practice.
Employees can refer disputes relating to unfair labour practices to the CCMA for
conciliation. If a dispute is not resolved during conciliation, the CCMA Commissioner
will issue a certificate of non-resolution of the dispute, after which the next step will
be to refer the dispute for con-arb (depending on the nature of a dispute) or
adjudication by the Labour Court (again, depending on the nature of a dispute).
Fairness is an essential element of ubuntu, the Constitution and labour law. By

protecting employees against unfair practices by employers, both the Constitution and
the LRA give effect to the principles of fairness. Traditional African values support the
principle that no one should be treated unfairly, and should such treatment take
place, the wronged person should get the opportunity to speak to the wrongdoer so
that they may work towards a solution together. In the context of unfair labour
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practices, ubuntu presupposes that the employer ought to treat all employees with
respect, acknowledging their human dignity as protected by the Constitution.
Protection against unfair labour practices rests on the principles of fairness.
5.3.1 The meaning and scope of an unfair labour practice
Study paragraphs 1, 2, 3 and 4 of chapter 6 of the prescribed book.
An unfair labour practice takes place in the course of employment. In other words, the
employee has not resigned or has not been dismissed, but is treated unfairly (for
example, when an employer demotes an employee without good reason or moves an
employee to a different branch without reason). The LRA protects employees against
these unfair labour practices. Every employee has the right not to be subjected to an
unfair labour practice.
Section 186(2) of the LRA defines an unfair labour practice as
any unfair act or omission that arises between an employer and an employee involving—
(a) unfair conduct by the employer relating to the promotion, demotion, probation
(excluding disputes about dismissals for a reason relating to probation) or training of
an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of
dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in
terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected
Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a
protected disclosure defined in that Act.
It is important to know that only these actions constitute unfair labour practices in
terms of the LRA; no other forms of unfair conduct can be classified as such. The list
is therefore exhaustive.
However, note that the Constitution guarantees everyone the right to fair labour
practices. This includes workers who are not covered by the LRA. Therefore, the
protection offered by the Constitution against unfair labour practices is wider than
that offered by the LRA. Moreover, note that it is only an employer who can be guilty of
an unfair labour practice with regard to an employee, and not vice versa.
Why do you think protection against unfair labour practices is necessary?
5.3.2 Discussion of the elements of the definition of unfair labour practices
(a) Promotion
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When an employer acts unfairly with regard to demotion, there is effectively action on
the part of the employer because the employer has changed the current position of the
employee. If this has been done unfairly, it would be easy to prove. However, it is more
difficult when one looks at unfairness regarding promotion or even training. If a
promotion was not given or if training was not provided, the employer did not act, and
therefore this omission (failure to do something) would be the cause of action. This
makes it very difficult to prove unfairness. For example, how do you show that you
should have been promoted? This aspect of an unfair labour practice is problematic in
practice.
In general, promotion falls within the managerial prerogative. The employer may
therefore promote the most suitable candidate (after a fair process has been followed).
An employee does not have any legal entitlement to be promoted to a higher post,
although circumstances may sometimes show otherwise. A decision not to promote an
employee is reviewable if the employer cannot justify its decision or if the decision
proves to be seriously flawed.
The other actions (such as demotion, probation, training and the provision of benefits)
are discussed in detail in the prescribed book. Important matters to look out for in the
discussion in the prescribed book in this regard are set out below.
(b) Demotion
Demotion can occur in cases where an employee
 is transferred to a lower level

 receives less remuneration
 loses benefits
 experiences a loss in status
Note that demotion can sometimes be fair, for example, when it is done in the context
of restructuring an organisation for operational reasons or because of incapacity.
Demotion can also be used as a disciplinary measure.
(c) Probation
In order for probation to be fair, it must meet the following requirements:
 The period should be determined in advance.

 The period should be of a reasonable duration.
In order to determine the reasonableness of the probationary period, the following

must be taken into account:
 the nature of the job

 the time it will take to determine the employee’s suitability for continued
employment
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Unfair action with regard to probation will take place if the period is used for purposes
not contemplated by the LRA. An employee on probation is not entitled to company
pension and medical aid benefits. If an employee is, for example, kept on probation so
that the company can save money by not contributing to these funds on behalf of the
employee, that will be unfair.
The probationary period may, however, be extended if it is justified (for example, where
the job requirements are such that an extended probationary period is required to
determine whether the employee is suitable for the job).
(d) Training
If an employer acts unfairly towards an employee in respect of the provision of

training, it will amount to an unfair labour practice. This is normally the case when an
employer fails to provide an employee with training or to send an employee for
training. In this case, the employee will have to show that he or she had a measure of
legitimate expectation to be trained and that the employer had acted arbitrarily,
capriciously or inconsistently in denying him or her training.
(e) The provision of benefits
Make sure that you understand the debate in this regard. There is uncertainty about
the meaning of “benefit” in this context since the LRA does not define the term. If
“benefit” is interpreted to mean something that is not part of an employee’s salary, it
will severely restrict the scope of this section.
Benefits normally have to do with an employee’s remuneration package, yet the courts
have interpreted it narrowly. This means that in order to claim that an employer acted
unfairly with regard to a “benefit”, the employee must show that the benefit that is
affected is something extra (apart from remuneration).
Study the detailed discussion on the debate in the prescribed book. Considering the
nature of modern-day salary packages, it is difficult to separate benefits from
remuneration; these difficulties will remain with us until the concept of unfair labour
practice is reviewed by the legislature.
(f) Suspension or any other disciplinary action short of dismissal
The unfair conduct of an employer relating to the suspension of an employee or any

unfair disciplinary action short of dismissal will amount to an unfair labour practice.
Two types of suspension are found in practice:
(1) The first type is suspension pending an inquiry, which is known as “precautionary
suspension”; it must be suspension with pay.
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(2) The second type, known as “punitive suspension”, is used as a sanction for
misconduct after an employee has been found guilty; it is usually suspension
without pay.
ACTIVITY 1
Distinguish between “precautionary suspension” and “punitive suspension”.
FEEDBACK 1
Precautionary suspension is used to allow an employer to investigate the alleged

misconduct of an employee and to decide whether disciplinary action should be taken
against the employee. Suspension is with pay as a rule, unless the employee agrees to
suspension without pay, or a law or collective agreement authorises unpaid
suspension. Punitive suspension is used as an alternative to a sanction of dismissal in
an attempt to correct the behaviour of the employee. It can be seen as a form of
progressive discipline, where appropriate.
(g) Refusal to reinstate or re-employ in terms of any agreement
Former employees are protected against employers’ refusal to reinstate or re-employ

them in terms of any agreement. An example is a refusal to re-employ a retrenched
(former) employee where a vacancy arises and it was agreed (for example, in a
collective agreement or the settlement agreement) to recall the former employee and to
consider him or her for the position.
(h) Occupational detriment on account of a protected disclosure/whistleblowing
It is important to remember that there is a possibility that an employee may be

dismissed or victimised because of whistleblowing.
Dismissal as a result of having made a protected disclosure (whistleblowing) will be

automatically unfair. Victimisation because of whistleblowing will not end the
employment relationship, but the employee will be prejudiced. The LRA terms this
“suffering” of the employee because of whistleblowing an “occupational detriment”.
If an employee suffers an occupational detriment because he or she made a protected

disclosure in terms of the Act, such occupational detriment will amount to an unfair
labour practice.
An employee can suffer an occupational detriment by
 being subjected to any disciplinary action

 being dismissed, suspended, demoted, harassed or intimidated
 being transferred against his or her will
 being refused a transfer or a promotion
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 being subjected to a term of employment or retirement that is altered or kept

altered to the employee’s disadvantage
 being refused a reference or being provided with an adverse reference
 being denied appointment to any profession or office
 being threatened with any of these actions
 being otherwise adversely affected in respect of employment, employment
opportunities and work security
Also ensure that you understand what a protected disclosure means.
ACTIVITY 2
What are the two key concepts with regard to whistleblowing and unfair labour
practices?
FEEDBACK 2
The two key concepts are occupational detriment and protected disclosure. Refer to
paragraph 5.8.2 of chapter 6 of the prescribed book.
5.3.3 Resolution of unfair labour practice disputes
Important steps in the process are the following:
 Bargaining councils or the CCMA (if no council has jurisdiction) has jurisdiction to
conciliate unfair labour practice disputes.
 A referral of an unfair labour practice dispute must be lodged within 90 days from
the date on which the unfair labour practice was committed, or within 90 days
from the date on which the employee became aware of the unfair labour practice.
 If conciliation fails and the dispute remains unresolved, the employee may request
that the dispute be arbitrated by the relevant bargaining council (or the CCMA),
except when the unfair labour practice relates to probation, in which case the so-
called con-arb process must be followed (which entails a single expedited process
during which the matter is arbitrated immediately after a certificate has been
issued that the dispute remains unresolved).
 An arbitrator may determine the unfair labour practice dispute referred to him or
her on terms that he or she deems reasonable, which may include the granting of
an order for reinstatement, re-employment or compensation of not more than the
equivalent of 12 months’ remuneration. Study paragraph 6.3 of chapter 6 of the
prescribed book to learn more about this aspect.
QUESTIONS
1. Discuss whether an employee can commit an unfair labour practice.

2. Explain the concept “occupational detriment”.
3. Discuss unfair conduct of the employer relating to probation as an unfair labour
practice.
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STUDY UNIT 6
TERMINATION OF AN EMPLOYMENT CONTRACT:
DEFINITIONS OF DISMISSAL AND AUTOMATICALLY UNFAIR
DISMISSAL
OUTCOMES
 explain the concept of termination of employment in terms of common law

 explain different ways in which a contract of employment may be terminated
 define the term “dismissal” and to explain different forms of dismissal
 distinguish between substantive fairness and procedural fairness of a dismissal
and to apply these principles in a practical situation
 define the term “automatically unfair dismissal”

 Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC)
6.2 INTRODUCTION
This study unit covers matters relating to the termination of employment. Employment
relationships do not last forever. At some stage, they must end. Some terminations are
planned, whereas others are not. This part of labour law is important and you will
come across it in your daily life, either as an employer or as an employee.
Various ways of terminating a contract of employment are explained in the prescribed

book. Termination may be either voluntary or involuntary. It is important that you
know and understand the various ways in which an employment contract can be
terminated. An employment contract can also be terminated through a dismissal. This
is a more drastic way of terminating an employment relationship. Make sure that you
know the different types of dismissal contained in the definition of dismissal and that
you can differentiate between them. The requirements that employers must comply
with before they dismiss employees are divided into two categories, namely,
requirements for procedural fairness and requirements for the substantive fairness of
a dismissal. You must understand these requirements since the fairness of any
dismissal depends on them.
The first step is to determine if the conduct of the employer amounts to dismissal. If
such conduct does constitute dismissal, the next step is to determine whether it is
automatically unfair and, if it is not, whether it is fair or unfair. The type of dismissal
will determine which requirements, both substantive and procedural, will apply.
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6.3.1 Ways of terminating an employment contract
Study different ways of terminating an employment contract in paragraph 1 of chapter

9 of the prescribed book.
A contract of employment may be terminated in one of the following ways:
 resignation by the employee concerned

 on completion of an agreed period or task
 by mutual agreement
 on the grounds of impossibility of performance
 as a result of the insolvency of the employer
 as a result of retirement
6.3.2 Definition of “dismissal” and “automatically unfair dismissal”
It is important to understand the definition of the term “dismissal” and the path that
an inquiry should follow to determine if a dismissal was automatically unfair, fair or
unfair.
You must know the definition of “dismissal” and the definition of “automatically unfair
dismissal”.
To illustrate these concepts, we use the following set of facts relating to Molly:
On returning from maternity leave, Molly is informed by her employer that her
position has been filled. She wants to know if she was unfairly dismissed.
To answer this question, one must first determine whether or not there was a
dismissal. If there was, then the next step is to determine the reason for the dismissal.
If the dismissal was based on some form of discrimination, it could be an
automatically unfair dismissal. If the reason was not discriminatory, one must
determine whether it related to misconduct, incapacity or operational reasons, and
whether the correct procedure was followed (discussed in chapter 10 of the prescribed
book).
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This process can be illustrated as follows:
WAS THERE A DISMISSAL?
YES NO
WHAT WAS THE REASON?
OR
Discrimination Non-discrimination
Yes Automatically Misconduct Incapacity Operational reasons
unfair
dismissal
Substantively fair AND procedurally fair
Yes No Unfair dismissal
No Yes Unfair dismissal
No No Unfair dismissal
Yes Yes FAIR DISMISSAL
We will now work through this process to see if Molly was dismissed and what the
nature of the dismissal was.
First, it is important to know which of the employer’s actions constitute dismissal. The
most obvious way of terminating a contract of employment is when the employer
terminates the contract with or without notice. The definition of “dismissal” is,
however, wider than this and includes other actions. This definition is discussed in
the prescribed book and you must make sure that you know and understand it. Note
that the definition includes one action by the employee (constructive dismissal), while
the rest are actions on the part of the employer.
If what happened between the employer and the employee does indeed amount to
dismissal (as defined), this does not necessarily mean that the dismissal was unfair.
The employee must show that what occurred was dismissal (in one of the forms listed
in the definition) and then the employer will get the opportunity to show that the
dismissal was not unfair.
Back to the case of Molly: Molly must prove that what occurred was dismissal. The
employer refused to allow Molly to resume her employment after her maternity leave.
This conduct on the part of the employer amounted to dismissal (according to the
definition of dismissal).
The inquiry now moves on to the fairness of the dismissal. The first step in this
process is to determine the reason for the dismissal.
If the dismissal was for a reason that amounts to discrimination, the dismissal will be
automatically unfair. In Molly’s case, the employer did not seem to have a valid reason
to dismiss her and probably dismissed her because of her pregnancy.
If the employer dismissed Molly because of her pregnancy, the dismissal was the
result of discrimination, which is automatically unfair, unless the employer can rely
on one of the two grounds for justifying discriminatory dismissal (namely, the inherent
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requirements of the job and age, if the employee has reached the agreed or normal
retirement age). The latter does not apply in Molly’s case. Whether the job has an
inherent requirement that Molly cannot meet will be determined objectively. For
example, if Molly is an actress who plays an anorexic drug user, the job will inherently
require someone who is very thin – a requirement that Molly will not be able to meet if
she is breastfeeding her baby.
If Molly proves that she was dismissed as a result of discrimination because of her
pregnancy, then the dismissal was automatically unfair. Study paragraph 4 of chapter
9 of the prescribed book, where automatically unfair dismissals are discussed in
detail.
If we assume that Molly’s employer refused to allow her to resume her job because it
transpired during her absence that she had stolen money from the company before
her maternity leave, her dismissal would then not be as a result of her pregnancy but
as a result of misconduct (discussed in chapter 10 of the prescribed book).
If Molly proves that she was dismissed, the burden of proof shifts to the employer to
prove that the dismissal was not unfair. To show that the dismissal was fair, the
employer has to prove that the dismissal was for a fair reason and that a fair
procedure was followed. He will therefore have to prove that Molly was indeed guilty of
theft and that he followed a fair procedure for the dismissal. If the employer did not
have a fair reason and/or did not follow a fair procedure, the dismissal would be
unfair. If Molly’s employer did not inform her of the allegation against her and did not
afford her a disciplinary hearing, the dismissal would be procedurally unfair.
For other forms of automatically unfair dismissal and dispute resolution in relation to
it, study the whole of paragraph 4 of chapter 9 of the prescribed book.
(a) Termination by the employer, with or without notice
An employer may dismiss an employee with or without notice. The employer must give
the employee notice of termination, except in cases where the employee has committed
a serious breach.
(b) Refusal or failure by the employer to renew a fixed-term contract
If an employee reasonably expects the employer to renew a fixed-term contract of

employment on the same or similar terms, but the employer offers to renew it on less
favourable terms, or does not renew it at all, that will amount to a dismissal.
(c) Refusal to allow an employee to resume work after maternity leave
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This type of dismissal takes place when an employer refuses to allow an employee to
resume work after she has taken maternity leave.
(d) Selective re-employment
This type of dismissal takes place when a number of employees are dismissed for the
same or similar reasons and the employer subsequently offers to re-employ one or
more of them, but refuses to re-employ another.
(e) Constructive dismissal
Constructive dismissal occurs when an employee resigns from his or her employment
because the employer has made continued employment intolerable for the employee.
The essential feature of constructive dismissal is that the employee terminates the
employment contract with or without notice because of the employer’s conduct. The
employee must prove the existence of the following three elements in order to succeed
with a claim for constructive dismissal:
(1) that he or she resigned

(2) that the reason for the resignation was that continued employment became
intolerable
(3) that it was the employer’s conduct that created the intolerable environment
ACTIVITY 1
Esrom is a qualified engineer at AA Engineers. Instead of giving Esrom tasks to do as

part of his job, Sam, the manager at AA Engineers, sends him out to run errands,
even though the company has a messenger. This goes on for several months and
Esrom decides to lodge a grievance with the employer. However, the manager
continues sending Esrom on errands. Esrom thinks “enough is enough” and decides
to resign from his job and alleges that he was dismissed.
Discuss whether Esrom’s resignation will amount to a dismissal.
FEEDBACK 1
If an employee resigns from his employment because the employer has made the
working conditions intolerable, it may amount to a dismissal. This type of dismissal is
called constructive dismissal. Although it is the employee who terminates the
employment, it is still regarded as a dismissal. Refer to paragraph 2.6 of chapter 9 of
the prescribed book.
(f) Providing an employee with less favourable terms after the transfer of a
business
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If an employee resigns because his or her conditions of employment are substantially

less favourable than those provided by the previous employer, the termination will be
regarded as a dismissal.
6.3.3 Fairness of a dismissal
A dismissal by an employer is only fair if it is both substantively and procedurally fair.

Substantive fairness refers to the fairness of the reason for the dismissal. Procedural
fairness refers to the fairness of the process followed in dismissing the employee. The
fair grounds on which an employee may be dismissed are misconduct, incapacity and
operational reasons.
Further, study paragraph 3 of chapter of the prescribed book to understand the

concept of progressive discipline.
6.3.4 Automatically unfair dismissal
Study paragraph 4 of chapter 9 of the prescribed book regarding the types of

automatically unfair dismissal.
This type of dismissal takes place when an employee’s basic right is infringed. The
employer will not have a defence for this type of dismissal unless the employee was
dismissed because he or she was unable to meet the inherent requirements of the job
or because he or she reached the normal or agreed age of retirement.
QUESTIONS
1. What are the different ways besides dismissal by which an employment contract
may be terminated?
2. Discuss failure by the employer to renew a fixed-term contract as a form of
dismissal.
3. What do you understand regarding the concept of automatically unfair
dismissal?
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STUDY UNIT 7
FAIR AND UNFAIR DISMISSAL AND DISPUTE RESOLUTION
OUTCOMES
 explain the requirements for substantive fairness and the requirements for
procedural fairness in respect of a dismissal based on misconduct and to apply
them in a practical situation
procedural fairness in respect of a dismissal based on incapacity and to apply
them in a practical situation
procedural fairness in respect of a dismissal based on operational reasons and
to apply them in a practical situation
 describe the remedies for an unfair dismissal and to apply them in a practical
situation
 describe the dispute resolution procedure for a dismissal based on misconduct,
incapacity and operational reasons

 Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 209
(SCA)
7.2 INTRODUCTION
An employment relationship may end in different ways, including dismissal. This

study unit deals with the grounds for dismissal provided by the LRA. The
constitutional right of everyone to fair labour practices contained in section 23 of the
Constitution means that an employee has a fundamental right not to be unfairly
treated, including not to be unfairly dismissed. Only employees have the right not to
be unfairly dismissed. This means that someone who is not an employee (such as an
independent contractor) does not enjoy this protection.
The approach of the LRA in respect of unfair dismissal can be summarised by asking
three questions:
 Is the worker an employee?

 Has there been a dismissal?
 Was the dismissal substantively or procedurally unfair?
Dismissal in the workplace can take place on the basis of the following three grounds:
 misconduct (this relates to the conduct of the employee, mainly in the workplace)
 incapacity
 operational reasons (this relates to operational aspects of the business)
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Labour law allows for the dismissal of employees on the basis of the above grounds.
However, an employee may not be dismissed unless both substantive and procedural
requirements have been met. This is to ensure fairness and respect for human dignity,
which are in line with both the Constitution and the ethos of ubuntu. According to
ubuntu, no one should be penalised before his or her side is heard, which corresponds
with the audi alteram partem rule. This rule originates from the natural desire of
humans to be fair to their fellow human beings. If the rule is observed diligently and in
all spheres of life, it leads to a just and fair society. This principle is similar to the
principle found in traditional African societies, where there is a strong emphasis on
the due observance of procedure. All members of the community must be allowed to
voice their opinions when their interests are affected. It can therefore be argued that
ubuntu and labour law converge in their common quest for social justice and fairness.
Inherent in procedural fairness is the requirement that an employee must know what
he or she is accused of, be afforded the opportunity to prepare and to present his or
her side of the story, and be given the opportunity to cross-examine witnesses. The
LRA also makes provision for compulsory mediation/conciliation in all dismissal-
related disputes before the matter may proceed to arbitration or adjudication.
Mediation is essentially ubuntu in practice. Refer to Joubert J “Embedding mediation
in South African justice” (mediate.com), where the author holds that what mediation
and ubuntu have in common is that they both advocate an alternative to
confrontation, that is, a solution where winning is not necessarily the best and only
option, but where parties can reach a negotiated settlement by applying their minds.
7.3.1 Dismissal for misconduct
The first recognised reason for which an employer can fairly dismiss an employee is
misconduct. In the case of dismissal for misconduct, the employee is at fault because
he or she broke a workplace rule. Rules are usually contained in disciplinary codes,
which go together with employees’ contract of employment. These rules inform
employees of the standard of conduct required of them. However, some rules are so
well known that they do not need to be included in employees’ contract of
employment.
In order for a dismissal to be fair, it must comply with the requirements for both
substantive and procedural fairness. The substantive fairness of a dismissal relates to
the reason for the dismissal, which must be there before the dismissal can take place.
The procedural fairness of a dismissal relates to the process that must be followed in
order for the dismissal to be fair.
Substantive fairness
Study paragraph 1.1 of chapter 10 of the prescribed book regarding the substantive
fairness of a dismissal based on misconduct.
Do you think it is necessary to have rules of conduct in the workplace and to discipline
employees if they breach those rules?
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For dismissal based on misconduct to be substantively fair, the following requirements

must be met:
 It must be established whether the employee contravened a rule or a standard

regulating conduct in, or of relevance to, the workplace.
 If he or she did contravene a rule, it must be established whether the rule was
valid and reasonable. This is normally determined with reference to the needs of
the workplace and the business.
 It must be established whether the employee was aware, or could reasonably be
expected to have been aware, of the rule or standard. An employee can only be
punished if he or she knew the conduct was unacceptable and that a
transgression of the rule could lead to dismissal.
 It must be established whether the employer consistently applied the rule or
standard. An employer cannot enforce a rule or a standard that was previously
ignored. This is called historical inconsistency, because the employer now acts
inconsistent with past conduct. If the employer wants to enforce the rule or
standard in future, it first has to inform the employees. If the employer treats
employees who are guilty of the same offence at more or less the same time
differently, it is called contemporaneous inconsistency.
 It must be established whether dismissal is the appropriate sanction for
contravention of the rule or standard. Dismissal should be seen as the last resort.
Normally, an employee will not be dismissed for a first offence, unless the
misconduct is serious and of such gravity that it renders the employment
relationship intolerable. The appropriateness of dismissal as a penalty will depend
on the employee’s circumstances, including
o his or her length of service

o his or her previous disciplinary record
o his or her personal circumstances
o the nature of the job
o the circumstances of the infringement itself
ACTIVITY 1
Solly is employed as a cleaner at Unisa. Every day, cleaners fetch detergents from the
storeroom in order to clean toilets. Solly often takes detergents from the storeroom but
instead of using them in the toilets, he takes them home.
Discuss whether Solly can be charged and dismissed for his conduct.
FEEDBACK 1
Solly can be charged and dismissed for misconduct. However, all the requirements for
substantive fairness in relation to dismissal based on misconduct must be complied
with in order to ensure that there is fairness. Refer to paragraph 1.1 of chapter 10 of
Study paragraph 1.2 (and its sub-paragraphs) of chapter 10 regarding substantive

fairness in relation to different types of misconduct.
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Procedural fairness
Study paragraph 1.3 of chapter 10 of the prescribed book regarding the procedural
fairness of a dismissal based on misconduct.
Procedural fairness is as important as substantive fairness for dismissal based on

misconduct (as is the case with all types of dismissal) and requirements for both must
be met in order for a dismissal to be fair. A fair procedure in this regard requires that
 the employer conduct an investigation to determine whether there are grounds for
dismissal
 the employer notify the employee of the allegations, using a form and a language
that the employee can reasonably understand
 the employee be given reasonable time to prepare
 the employee be given the opportunity to state a case in response to the allegations
 the employee be afforded the assistance of a union representative or co-employee
 after the enquiry, the employer communicate the decision taken to the employee,
preferably by providing the employee with written notification of the decision and
the reasons for the decision
 if the employee is dismissed, he or she be reminded of any rights to refer the
matter to a bargaining council or the CCMA
The fact that there is a reason to dismiss an employee as discussed above is not
enough. In order to further ensure that the constitutional values of fairness, human
dignity, transparency and justice are upheld, the set procedure must be followed. The
audi alteram partem rule, among other things, must be complied with in order to
afford an employee the opportunity to defend him- or herself. Fairness is further
supported by the fact that once a decision has been made and the employee is not
satisfied with that decision, he or she can appeal against it to a higher body.
ACTIVITY 2
IT Computers is a company that sells computers and computer parts. A computer

hard drive is missing from the lock-up cabinet, and Joe was the last person seen
opening the cabinet. Sue, who is Joe’s supervisor, accuses him of theft and tells him
to go home and to never come back to work. Advise Joe on whether he was dismissed
and whether the dismissal was procedurally fair.
FEEDBACK 2
Seeing that Joe was informed to never go back to work, it can be assumed that he was
dismissed. However, the company did not follow a fair procedure in dismissing Joe. A
fair procedure entails a fair disciplinary enquiry. In terms of section 188(1)(b) of the
LRA, a dismissal for misconduct must be effected in accordance with a fair procedure.
An employee must be given an opportunity to state his or her case (this principle is
known in common law as the audi alteram partem rule). However, the type of job and
the misconduct committed sometimes determine whether or not an employee can be
summarily dismissed. Refer to page 174 of the prescribed book.
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Take note that disciplinary steps against a union representative or an employee who is
an office-bearer or an official of a union should not be instituted without first
informing and consulting the union. Further, an employer can dispense with a pre-
dismissal hearing only under exceptional circumstances, namely, in “crisis-zone”
situations (where there is a danger to life or property) and if the employee waives his
or her right to a hearing.
Study paragraph 1.4 of chapter 10 of the prescribed book regarding dispute resolution
in the case of dismissal based on misconduct.
If the fairness of a dismissal is challenged, the dispute will be resolved through

conciliation and if it is not resolved, it will be referred for arbitration by a bargaining
council or the CCMA. Study the process in your prescribed book.
Remember that an arbitration award is final. This means that an appeal is not
possible; the matter can only be taken on review by the Labour Court. Take note that
the scope of review in labour law is much wider than in civil matters.
7.3.2 Dismissal for incapacity
The second recognised reason for which an employer can fairly dismiss an employee is
incapacity, which is regulated in terms of section 188 of the LRA. Incapacity can
manifest itself as poor work performance (i.e. the employee does not have the ability
to do the job), or can be due to ill health or injury.
A dismissal based on incapacity is a “no-fault” dismissal because it involves some

form of behaviour or conduct, or inability, that is neither intentional nor negligent on
the employee’s side.
Given the above statement, do you think it is fair to dismiss an employee on the basis of
incapacity?
(a) Poor work performance
Study paragraphs 2.2 and 2.3 of chapter 10 of the prescribed book.
For purposes of dismissal based on incapacity, the LRA distinguishes between

employees who are on probation (the purpose of probation is to see if the employee can
do the work) and employees who have completed their probationary period. The reason
for this is that although all employees who perform poorly must be assisted and
counselled, the obligation to do so and the extent of doing so are less in the case of a
probationary employee.
The important steps that must be followed according to the Code: Dismissal before a
probationary employee can be dismissed for poor work performance are as follows:
 The employer must give the employee the evaluation, instruction, training,
guidance or counselling he or she may need to perform his or her duties during the
probationary period.
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 The employer must make it clear to the employee what the performance standard
is and where he or she falls short.
 The employer must give the employee assistance and the opportunity to improve.
 The employer should measure the employee’s progress and give feedback to the
employee.
 The assistance required and the period of probation will be determined by the
nature of the job.
 The employee must be given the opportunity to respond to the allegations of
unacceptable work performance, and a union representative or co-employee may
assist him or her.
Note the similarities with the procedure for the dismissal of a permanent employee
(after probation) who underperforms. In this case
 the employer must investigate in order to determine the reasons for the
unsatisfactory performance
 the employer must give appropriate evaluation, instruction, training, guidance or
counselling
 the employer must give the employee a reasonable period of time to improve
 the employee has the right to be heard and to be assisted by a union
representative or colleagues
If the employee continues to perform unsatisfactorily, he or she can be dismissed for

poor work performance.
As in the case of dismissal based on misconduct, all the above requirements and
processes are there to ensure fairness, transparency and justice in the dismissal of
employees in line with ubuntu and constitutional values.
(b) Ill health or injury
For purposes of dismissal based on incapacity, the Code: Dismissal (item 10)
distinguishes between temporary or permanent illness and injury. The LRA protects
an employee against unfair dismissal in these circumstances, and the Compensation
for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and the
Unemployment Insurance Act 63 of 2001 (UIA) make provision for compensation
under certain conditions (these statutes are dealt with in chapter 7 of the prescribed
book, which is not prescribed for this module).
The LRA aims to prevent employers from dismissing employees because of injury or
illness. However, in the case of permanent illness, dismissal is sometimes the only
option. This decision is more problematic in cases of temporary illness because there
is a possibility that the employees can return to their previous position, for example,
when an employee with cancer goes for chemotherapy for two months or when an
employee undergoes hip replacement surgery and is absent from work for three
months.
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Substantive fairness in cases of dismissal for injury/illness requires the following:
 The employer must make an informed decision.

 The employer must determine whether or not the employee is capable of
performing the work.
 If the employee is not capable of performing the work, the employer must
determine
o the extent to which the employee is able to perform the work
o the extent to which the employee’s work circumstances might be adapted to
accommodate disability, or
o where this is not possible, the extent to which the employee’s duties might be
adapted
Procedural fairness requires the following:
 The employee must get an opportunity to respond and to make suggestions

(with the assistance of a co-employee or a union representative).
 The employer must consult with the employee.
 The employer must consider the available medical information.
 The employer must attempt to accommodate the employee where reasonably
possible.
For both temporary and permanent disability, the employer has to consider
 the nature of the job

 the period of absence
 the seriousness of the illness or injury
 the possibility of securing a temporary replacement for the ill or injured employee
 the degree of incapacity
 the cause of the incapacity – if the employee is incapacitated as a result of a work-
related illness or injury, the duty on the employer to accommodate the incapacity
of the employee is more onerous
 the availability of any suitable alternative work, or adapting the duties or work
circumstances of the employee to accommodate the employee’s disability
In this process, it is important that the employer make an informed decision and that
the employee get an opportunity to respond and to make suggestions. A co-employee
or a union representative may assist the employee.
You must know the dispute resolution route for a dispute concerning the fairness of a
dismissal based on incapacity. The route is the same as the one for a dispute
regarding dismissal for misconduct.
All the above requirements and processes are there to ensure fairness, transparency
and justice in the dismissal of employees in line with ubuntu and constitutional
values.
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ACTIVITY 3
Abram, who is employed by TT Roof as a roof repairer, falls from the roof of a house
while he is waterproofing the roof after heavy rain. Abram breaks his leg and hand,
and is consequently unable to work. TT Roof informs Abram that because he cannot
perform his duties due to these injuries, he will be replaced with another person.
Discuss whether TT Roof is justified in terminating Abram’s employment contract

because Abram is injured and cannot perform his duties.
FEEDBACK 3
TT Roof is not justified in dismissing Abram; it must follow the procedural
requirements before dismissing him. TT Roof must consult with Abram, consider the
available medical information and attempt to accommodate him where reasonably
possible. If Abram is unable to work, TT Roof should investigate the extent of his
incapacity. If Abram is likely to be absent from work for an unreasonably long time, TT
Roof should consider alternatives before dismissing him. If Abram will be permanently
unable to perform the job because of his injuries, TT Roof may dismiss him, but must
also consider the circumstances. TT Roof has to consider, among other things, the
nature of the job, the period of absence, the seriousness of the injury, the degree of
incapacity and the cause of the incapacity – if Abram is incapacitated as a result of the
work-related injury.
Study paragraph 2.5 of chapter 10 of the prescribed book regarding dispute resolution
in the case of dismissal based on incapacity.
7.3.3 Dismissal for operational reasons
The third recognised reason for which an employer can fairly dismiss an employee is
when it is done for operational reasons. Dismissal for operational reasons is also
regarded as a “no-fault” dismissal, because the termination of employment is not the
result of the actions or fault of the employee. This form of dismissal is usually referred
to as retrenchment.
The LRA defines operational reasons as reasons relating to
 economic needs, for example financial difficulties experienced by the business

 technological needs, for example the introduction of technology, leading to
redundancy of employees
 structural needs, for example redundancy of posts due to a merger
 similar needs, for example when an employee is incompatible with the workplace
or co-employees and when there is a breakdown in the trust relationship between
the employer and the employee
It is very difficult for the court to determine whether an employer had substantially
fair reasons to dismiss employees for operational reasons. The current approach is
that an employer’s version will not merely be taken at face value. The court will
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determine if there was a reasonable basis and a commercial rationale for

retrenchment. Retrenchment should remain a matter of “last resort”.
Study paragraph 3.2 of chapter 10 of the prescribed book where a distinction is made
between small and large employers and between large-scale and small-scale
dismissals.
Study paragraph 3.3 of chapter 10 of the prescribed book where the substantive
fairness of dismissal based on operational reasons is discussed.
You must distinguish between section 189 dismissals and section 189A dismissals. In
terms of section 189A, dismissal for operational reasons will be substantively fair if
 the reason for the dismissal is operational requirements as defined in the LRA
(that is, for economic, technological, structural or similar needs)
 the reason is justifiable and based on rational grounds
 there was proper consideration of alternatives (in other words, the employer
applied his or her mind and was able to give reasons for not resorting to
alternatives, if any)
 the selection criteria were fair and objective
Because the requirements for substantive and procedural fairness are intertwined, the
court is very strict when it scrutinises whether the process prescribed by the LRA was
followed.
It is important that you know the process prescribed by section 189 of the LRA.
fairness of dismissal based on operational reasons by a small employer.
(a) Prior consultation
Note the following:
 Consultation must take place when the employer contemplates dismissal (in other
words, at the stage when the employer has not yet reached a final decision to
dismiss, but has merely foreseen the possibility).
 In terms of section 189(2) of the LRA, consultation means to “attempt to reach
consensus”.
 The employer must consult
o with the person or group indicated in a collective agreement
o if there is no collective agreement, with a workplace forum (if there is one)
o alternatively, with any registered trade union whose members are likely to be
affected by the proposed dismissals, and if there is no such union, with the
employees likely to be affected by the proposed dismissals or their nominated
representatives
 A single meeting is not “sufficient” consultation with employees; a single meeting
during which the employer informs the employees of its plans is not sufficient to
constitute “consultation”.
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(b) Attempt to reach consensus
There are six matters on which the parties must try to reach agreement/consensus,
namely:
(1) appropriate measures to avoid dismissals

(2) appropriate measures to minimise the number of dismissals
(3) appropriate measures to change the timing of dismissals
(4) appropriate measures to mitigate the adverse effects of dismissals
(5) selection criteria
(6) severance pay
The purpose of consultation is to attempt to reach consensus on issues, thereby

encouraging parties to negotiate, to discuss issues and to try to agree on a solution.
This promotes peace between the parties and encourages them to work together in
order to solve issues.
(c) The employer must disclose all relevant information in writing
This requirement is regulated by sections 189(3) and 16 of the LRA, which compel an
employer to disclose relevant information. The right of employees to demand
information is not unrestricted. In terms of section 16(5), four categories of
information need not be disclosed, namely
(1) information that is legally privileged

(2) information that the employer cannot disclose without contravening a prohibition
imposed on it by any law or by order of any court
(3) information that is confidential and, if disclosed, may cause substantial harm to
an employee or the employer
(4) information that is private personal information relating to an employee, unless
that employee consents to the disclosure of that information
In order for the discussions/negotiations to be effective and productive, all parties

must have relevant information. This promotes the constitutional value of
transparency between the parties.
(d) Opportunity to respond
Should the employer not allow the union, the employee representative, the workplace
forum or any other relevant party to make representations during consultation, the
dismissal will be procedurally unfair.
This is in line with the audi alteram partem rule, which is a rule of natural justice that
encourages fairness and justice, in terms of which both sides must be heard before a
decision can be made.
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(e) Consideration
The employer must respond to the representations and give reasons if they are not
acceptable.
(f) Selection criteria
The Code of Good Practice on Dismissal Based on Operational Requirements

acknowledges the criterion of “last in, first out” (LIFO), which is widely accepted as fair
and objective. However, it can amount to indirect discrimination in some instances, for
example, if only affirmative action appointments (the last appointed employees) are
affected.
The criterion of “first in, first out” (FIFO) can amount to indirect discrimination based
on age, because mostly older people will be affected.
(g) Severance pay
Section 41 of the BCEA regulates the payment of severance pay. The employer must
pay the employee a minimum of one week’s salary for each completed year of
continuous service.
However, the employer’s duty to pay severance pay is not absolute. If an employee
unreasonably refuses to accept the employer’s offer of alternative employment with
that employer or another employer, the employee forfeits his or her entitlement to
severance pay.
fairness of a large-scale dismissal by a large employer.
In the case of a large-scale retrenchment in terms of section 189A of the LRA, the
process differs from the basic process in three respects, namely
(1) the appointment of a facilitator

(2) the prescribed time periods
(3) the option to strike if the trade union is of the view that the retrenchment is
unfair
Make sure that you understand this section and that you can compare the process of
a section 189 retrenchment with that of a section 189A retrenchment.
You must know the dispute resolution route for an alleged unfair dismissal for
operational reasons. Such a dispute must be referred for conciliation and if it is
unsuccessful, it must be referred to the Labour Court for adjudication.
Note, however, that in the case of a large-scale retrenchment in terms of section 189A,
the facilitator will be involved during the conciliation phase and if the matter is not
resolved, the employees/union can choose to strike rather than refer the matter to the
Labour Court.
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ACTIVITY 4
RR Bricks, a company that manufactures bricks, has been facing financial difficulties
for some time. The company thinks that by reducing the number of its employees, it
will save a lot of money and be able to continue its operations. The company decides
to dismiss 20 of its employees, starting with those who have been absent from work
for more days than others.
Discuss whether the dismissal of those employees will qualify as dismissal based on
operational reasons and whether the selection criterion used by the company is
acceptable.
FEEDBACK 4
Operational reasons refer to technological, structural, economic and similar needs of a

business. The dismissal of 20 employees by RR Bricks will qualify as dismissal based
on operational reasons because there is an economic reason why the company wants
to dismiss them. However, the dismissal of employees will not be fair because the
company has not followed the correct procedure. The selection criterion used by the
employer is also not fair since the LRA obliges an employer to use fair and objective
selection criteria such as LIFO and FIFO.
Study paragraph 3.6 of chapter 10 for more information on dispute resolution for
unfair large-scale retrenchments and paragraph 3.7 of chapter 10 for more
information on dispute resolution for unfair small-scale retrenchments
7.3.4 Other aspects of dispute resolution in labour matters
Study paragraph 4 of chapter 10 of the prescribed book regarding the various methods
of dispute resolution, the remedies for unfair dismissal, the jurisdiction of courts in
labour disputes, and so on.
QUESTIONS
1. Discuss the requirements for substantive fairness in respect of a dismissal based

on misconduct.
2. Discuss whether an employee who is on probation can be dismissed.
3. Discuss the concept of consultation for purposes of a dismissal based on
operational reasons.
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STUDY UNIT 8
FREEDOM OF ASSOCIATION, TRADE UNIONS’ RIGHTS AND
EMPLOYERS’ RIGHTS
OUTCOMES
 explain employees’ right to freedom of association in terms of the Constitution

and the LRA and to apply the relevant principles in a practical situation
 explain employers’ right to freedom of association in terms of the Constitution
and the LRA and to apply the relevant principles in a practical situation
 distinguish between closed shop agreements and agency shop agreements and
to apply the relevant principles in a practical situation
 list and to explain organisational rights available to trade unions and the level of
representation required from trade unions to acquire these rights and to apply
the relevant principles in a practical situation
 explain different methods of acquiring organisational rights
 explain the process of dispute resolution relating to organisational rights

 IMATU & Others v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC)
8.2 INTRODUCTION
Freedom of association means that people have the right to associate with others in
order to defend and protect their common interests. In the workplace, freedom of
association entails the right of workers to form and join trade unions of their choice
and to participate in the trade unions’ lawful activities. Employers can also form and
join employers’ organisations. This is in line with the African idioms motho ke motho,
ka batho (you are, because of others), bobedi bo bolaya noga (it is easier for two or
more people to conquer the enemy) and kopano ke matla (unity is power).
Freedom of association is one of the basic principles of labour law and this is reflected
in several ILO conventions, the LRA and the Constitution. The right to freedom of
association is clearly protected in terms of sections 18 and 23 of the Constitution.
Both employees and people seeking employment have this right, and an employer may
not infringe it.
In order to strengthen the right to freedom of association for employees and their trade
unions, the Constitution and the LRA provide for trade union security arrangements.
Trade union security arrangements refer to closed shop agreements and agency shop
agreements. The LRA further strengthens the right to freedom of association and
collective bargaining by providing for five organisational rights that representative
trade unions may acquire from employers.
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The LRA stipulates
 what level of representation is needed to obtain these rights

 how the level of representation should be determined
 the processes available for obtaining these rights
 the rights of minority trade unions with regard to organisational rights
This study unit deals with freedom of association, trade unions’ rights and employers’
rights.
(a) Historical background to freedom of association and trade unionism in

South Africa
For many years, trade unionism did not exist in South Africa, but following the
discovery of minerals and the development of mines in the late 19th century it was
introduced by mineworkers and artisans who came to work in the country’s mines
from overseas, especially Britain. Trade unions were first given statutory recognition
by the Industrial Conciliation Act 11 of 1924, but black workers were excluded from
the system. Later, the Industrial Conciliation Act 28 of 1956 was passed, which dealt
extensively with freedom of association and trade union rights. In 1977 the Wiehahn
Commission made recommendations that brought about a number of far-reaching
changes in labour legislation, including the granting of the right to freedom of
association to all workers. Since South Africa became a democratic country, the right
to freedom of association has been entrenched in the Constitution and given effect by
the LRA.
(b) Freedom of association
Firstly, freedom of association is protected in terms of ILO conventions (Convention 87

of 1948 and Convention 98 of 1949) and the African Charter on Human and Peoples’
Rights (ACHPR). Secondly, this right is protected by the Constitution. The Constitution
provides for two types of freedom of association: section 18 grants everyone the right
to freedom of association, while section 23 grants freedom of association specifically to
workers, trade unions, employers and employers’ associations (refer to para 2.1 of
chapter 11 of the prescribed book). Thirdly, the LRA gives practical effect to this right.
Freedom of association means the right to associate with others in order to defend
common interests. Employees form trade unions and employers form employers’
organisations in order to exercise this right. The LRA protects freedom of association
for employees, people seeking employment and employers.
The notion of freedom of association is in line with the practice in African societies to
find security in groups such as the family and the community. This practice,
according to which individuals are represented by a collective, is based on the belief
that there is power in unity. Even in the workplace, employees form groups that are
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called trade unions and employers form groups called employers’ organisations. Trade
unions represent workers and ensure their job security and improved terms and
conditions of employment, whereas employers’ organisations represent the interests of
employers.
Note that although the LRA does not apply to uniformed members of the SANDF and
the SSA (which includes the National Intelligence Agency, the South African Secret
Service, the South African National Academy of Intelligence and Electronic
Communications Security (Pty) Ltd), their right to freedom of association is still
protected by section 23 of the Constitution. Managerial employees have a limited right
to freedom of association since they must balance their common law duty to act in
good faith with their right to freedom of association.
Do you think the limitation of the right to freedom of association for managerial
employees is justified?
ACTIVITY 1
Read the following set of facts carefully and then answer the question:
Thamie is employed as a marketing manager at Power (Pty) Ltd. Thamie is an active

member of Amandla Union (AU). In 2017 he was elected as a trade union
representative for AU. However, the employer informed him that he had to decline his
election within the union because he was part of management.
Advise AU and Thamie on the matter with reference to relevant case law and
legislation.
FEEDBACK 1
Freedom of association is a constitutional right and a basic labour law right of every
employee in an organisation, regardless of the status and seniority of the employee.
Section 4 of the LRA states that every employee has the right to participate in forming
a trade union and can join a trade union, subject to its constitution. The employee
furthermore has the right to participate in the trade union’s activities and to stand for
election. Therefore, Power (Pty) Ltd acted inappropriately in informing Thamie that he
had to decline his election as a trade union representative. Section 4 applies to
managers too. A manager who belongs to a union is not in breach of his or her duty of
fidelity to the employer. This right can also not be excluded by contract. Any contract
that contains a clause prohibiting union membership infringes the employee’s right to
freedom of association.
The following case will help you to answer the question well:
 IMATU & others v Rustenburg Transitional Council [1999] 12 BLLR 1299 (LC)
(c) Trade union security arrangements
Rights in the Bill of Rights are not absolute since they may be limited. The
Constitution and the LRA provide for the limitation of the right to freedom of
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association by, among other things, allowing trade union security arrangements in the
form of closed shop and agency shop agreements. This means that although these
agreements infringe on the right to freedom of association, the infringement is not
automatically unfair because the infringement/limitation is justified in terms of
section 36 of the Constitution. The main difference between agency shop and closed
shop agreements is that an agency shop agreement requires the employer to deduct
an agreed agency fee from the wages of employees who are identified in the agreement
and who are not members of the trade union that is party to the agreement, while a
closed shop agreement requires all employees covered by the agreement to be
members of the trade union that is party to the agreement.
Do you think it is fair for employees who do not want to become members of trade
unions to be bound by these agreements and, if so, why?
Read more about the two agreements in paragraphs 3.2 and 3.3 of chapter 11 of the
prescribed book. Note that only post-entry closed shop agreements (in terms of which
employees are required to join trade unions after they are employed and not before)
are recognised under the LRA.
ACTIVITY 2
Read the following set of facts and then answer the question:
Alpha (Pty) Ltd concludes a closed shop agreement with Alpha Union, a majority trade
union within the workplace. Alfred applies for a position within Alpha (Pty) Ltd and
after his interview he is informed that he will only be appointed if he becomes a
member of Alpha Union. Alfred refuses and informs the company that he is not a
“comrade” and will not join a trade union.
Advise Alfred on whether Alpha (Pty) Ltd was justified in insisting that he join Alpha
Union.
FEEDBACK 2
The employees of an employer who concluded a closed shop agreement with a majority
trade union are required to join that union. However, the LRA does not provide for a
pre-entry closed shop agreement, but for a post-entry closed shop agreement. This
means that employees cannot be required to join a trade union before they are
employed. Consequently, Alpha (Pty) Ltd was not justified in insisting that Alfred join
Alpha Union.
(d) Organisational rights
(i) The purpose of organisational rights
Organisational rights enable trade unions to function more effectively. Organisational

rights strengthen trade unions and therefore support the right to freedom of
association. Organisational rights are only granted to registered trade unions that
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have a certain level of representation in the workplace. The following table shows the
five organisational rights and the level of representation that a union must have in
terms of the LRA in order to acquire them:
Organisational right Minimum level of representation

Access to premises of the employer Majority representation and sufficient
(workplace) representation
Deduction of trade union Majority representation and sufficient
membership fees (subscription fees) representation
Election of trade union Only majority representation
representatives (shop stewards)
Leave (time off) for trade union Majority representation and sufficient
activities representation
Disclosure of information Only Majority representation
Do you think organisational rights are necessary for trade unions and, if so, why?
Note that a trade union that has majority representation in the workplace is entitled to
all five organisational rights, while a sufficiently representative trade union will only
enjoy certain rights. A majority trade union is a trade union that represents at least
51% of all employees in the workplace (see paragraph 4.4 of chapter 11 of the
prescribed book). The LRA does not define “sufficiently representative”, but gives
guidelines (a union that represents approximately 30% of the employees in the
workplace).
More information on these rights is provided in paragraphs 4.2 to 4.4 of chapter 11 of
(ii) The acquisition of organisational rights
Trade unions acquire organisational rights in the following ways:

Method Notes
Collective agreement A registered trade union and an employer or
an employers’ organisation can conclude a
collective agreement that regulates
organisational rights.
Membership of a bargaining council Any registered trade union that is a party to
a bargaining council automatically acquires
the right to access the workplace (s 12) and
the deduction of trade union subscriptions (s
13) in respect of all workplaces that fall
within the jurisdiction of the bargaining
council.
Strike action A minority trade union may strike in support
of a demand for organisational rights.
Section 21 procedure A registered trade union that is sufficiently
representative may acquire organisational
rights through the procedure outlined in
section 21 (refer to para 4.5.4 of chapter 11
of the prescribed book).
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(iii) Disputes about organisational rights
A dispute about organisational rights may be referred to the CCMA in writing by any
party to the dispute.
(e) Relationship between a union and its members
The relationship between a trade union and its members is regulated by the union’s
constitution, which contains the necessary rules and procedures. For more
information on the constitution of trade unions, refer to paragraph 5 of chapter 11 of
(f) Registration of unions
A trade union is an association of employees whose principal purpose is to regulate

the relations between employers, including employers’ organisations, and their
employees. Note that a trade union does not have to be registered in order to exist, but
the LRA encourages registration and therefore grants benefits such as organisational
rights and trade union security arrangements to trade unions that register.
QUESTIONS
1. Draw a distinction between a closed shop agreement and an agency shop

agreement.
2. Mention the organisational rights to which only a majority trade union is entitled.
3. Employer Z, who has concluded a closed shop agreement with Power Union,
informs its employees that they cannot join any trade union other than Power
Union. Do you think that this action by the employer violates sections 4 and 5 of
the Act?
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STUDY UNIT 9
COLLECTIVE BARGAINING
OUTCOMES
 explain the process of collective bargaining

 explain whether or not there is a duty to bargain in South African labour law
 define the term “collective agreement”
 explain the binding effect of collective agreements in general and those
concluded in a bargaining council and to apply the relevant principles in a
practical situation
 describe the role of bargaining councils and statutory councils
 explain how collective agreements are extended
 explain the process of dispute resolution in respect of collective agreements

 AMCU v Chamber of Mines of South Africa and others (CCT87/16) [2017] ZACC 3
9.2 INTRODUCTION
Collective bargaining presumes a willingness on the part of each party to not only
listen to and consider representations of the other party, but also to abandon fixed
positions, where possible, in order to find common ground. Through collective
bargaining, parties (trade unions and employers/employers’ organisations) with
different views and desires are able to reach agreement on a variety of issues. It is
called collective bargaining because employees (collectively) represented by a trade
union (and not as individuals) negotiate with the employer or employers’ organisation.
Labour law and Africanisation both encourage a sound relationship tailored on

accommodating opposing views and conciliating competing interests. They are both
based on an inclusive approach according to which negotiations take place and a
decision is reached on a matter. This promotes a horizontal approach, which means
that decisions are not only made from the top. Collective bargaining is rooted in
freedom of association, which is an important principle of ubuntu. When people
practise ubuntu, they work together, making them and their voices stronger. This
principle is at work in collective bargaining, where both parties are represented by
their organisations (trade unions and employers’ organisations) to make
representations. A trade union representing employees presents employees’ demands,
and the employer (at times represented by an employers’ organisation) responds to
employees’ demands.
The main goal of collective bargaining between an employer and a trade union is to
reach consensus about terms and conditions of employment and to formalise this
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consensus by means of a collective agreement. A collective agreement regulates the

rights and duties agreed upon by the parties. This promotes peace and reduces
conflict in the workplace because when an agreement is reached, it must be adhered
to for as long as it is valid.
In this study unit, we discuss the right to bargain, including the employer’s refusal to
bargain, bargaining agents, bargaining structures and collective agreements.
(a) The duty to bargain
Although the Constitution provides for the right to collective bargaining, this does not
mean that there is a duty on employers to bargain with employees (or employees with
employers). The LRA encourages voluntary collective bargaining by granting
organisational rights and recognising union security arrangements (discussed in the
previous study unit) and the right to establish bargaining institutions. The refusal to
bargain can, however, result in industrial action (for example, a strike) by employees
in order to convince the employer to bargain. In terms of section 64(2) of the LRA, the
refusal to bargain includes the following:
 when the employer refuses to recognise a trade union as a bargaining agent

 when the employer refuses to establish a bargaining council
 when the employer withdraws the recognition of a collective bargaining agent
 when the employer resigns as a party to a bargaining council
 when the employer disputes appropriate bargaining units, levels and topics
Do you think there must be a duty to bargain in South Africa and, if so, why?
(b) Bargaining agents
Employees organise themselves into trade unions, who become their bargaining
agents. Trade unions are regulated by the LRA, which also prescribes the process for
their registration.
A single employer can engage in collective bargaining with a trade union or employers
may form an employers’ organisation that will serve as their bargaining agent.
However, a single employee cannot engage in collective bargaining with the employer
(employees must be represented by trade unions). An employers’ organisation is
defined as “any number of employers associated together for the purpose, whether by
itself or with other purposes, of regulating relations between employers and employees
or trade unions”. Trade unions and employers’ organisations may together form
bargaining councils.
A bargaining council is similar to an African structure called a kgoro where parties

meet to address whatever issues they have. People may send representatives to a
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kgoro to represent their interests during the discussions. The representations made at
the kgoro are seen as representations by the groups that are represented. Decisions
relating to the community that are made at the kgoro will then affect the community
as a whole.
(c) Bargaining levels
Bargaining can take place on the following levels:
Bargaining level Explanation

Plant level Bargaining that takes place between the
employees and the employer at a
specific plant or factory.
Sector level Bargaining that takes place in a specific
sector of the economy and that is linked
to a specific geographical area.
Industry level Bargaining that takes place for a whole
industry, for example the mining
industry.
(d) Statutory bargaining structures
Bargaining councils and statutory councils are two types of structures created by the
LRA.
(i) Bargaining councils
A bargaining council can be established by one or more registered trade unions and
one or more registered employers’ organisations for a sector and an area (for example
the security industry in Gauteng). Section 30 of the LRA lists topics that must be
provided for in the constitution of a bargaining council. The parties to a bargaining
council may apply for its registration to the Registrar of Labour Relations by
submitting the documents prescribed by the LRA (refer to section 5.1.2 of chapter 12
of the prescribed book). The powers of a bargaining council include the power to
conclude collective agreements, the power to enforce such agreements and the power
to prevent and resolve disputes (refer to section 5.1.3 of chapter 12 of the prescribed
book).
(ii) Statutory councils
A statutory council may only be established in a sector or an area where there is no

bargaining council. A statutory council may be established when a representative
trade union (that is, a union or unions representing at least 30% of employees
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employed in the sector or area in which application is made) or a representative

employers’ organisation (that is, an employers’ organisation whose members employ at
least 30% of employees in the sector or area in which application is made) applies to
the Registrar for the establishment of a council.
Do you think it is necessary to have the above bargaining structures and, if so, why?
(e) Collective agreements
A collective agreement is concluded after successful collective bargaining between the

employer and trade unions. It regulates the terms and conditions of employment on
which the parties agreed.
Refer to paragraph 6 of chapter 12 of the prescribed book for the definition of a

collective agreement and its important elements, and for a discussion of the legal and
binding effect of a collective agreement.
It is important to note that a collective agreement changes any contract of employment

between an employee and an employer if they are both bound by the agreement. A
collective agreement concluded in a bargaining council is binding on parties to the
bargaining council who are parties to the agreement, and parties to the council who
are not parties to the agreement and parties who are not members of the council and
not parties to the agreement but who fall within the sector and area of jurisdiction of
the council, if the agreement is extended to them in terms of section 32 of the LRA.
This is based on the belief that the majority rules. In other words, what many people
agree upon will usually overrule the position of individuals.
Every collective agreement must contain a procedure for the resolution of disputes
about the application and interpretation of that agreement.
ACTIVITY 1
Dudu’s contract of employment provides that she is entitled to 20 days’ vacation leave
per annum. A collective agreement is concluded at the bargaining council in the sector
in which Dudu works, which provides that employees are entitled to 25 days’ vacation
leave per annum. Discuss whether Dudu will be entitled to 20 days’ vacation leave or
25 days’ vacation leave.
FEEDBACK 1
You must discuss the legal effects of a collective agreement. Dudu will be entitled to
25 days’ vacation leave as provided for by the collective agreement concluded at the
bargaining council.
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QUESTIONS
1. Explain the process of collective bargaining and how African values are
entrenched in it.
2. What are the three levels at which bargaining can take place?
3. Discuss whether or not an employer has a duty to bargain with a trade union.
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STUDY UNIT 10
WORKPLACE FORUMS
OUTCOMES
 distinguish between workplace forums and trade unions

 explain how workplace forums are established
 describe the main functions of workplace forums
 distinguish between consultation and joint decision-making as functions of a
workplace forum
10.2 INTRODUCTION
This study unit deals with workplace forums. Workplace forums were introduced to
enable all employees to participate in decision-making in the workplace, irrespective of
their trade union membership. These forums are aimed at dealing with non-wage-
related matters separately from the collective bargaining system, which is adversarial
in nature.
Labour law and Africanisation, both of which encourage fairness and transparency in
reaching decisions, involve an inclusive approach of consultation and joint decision-
making in dealing with matters. The introduction of workplace forums was aimed at
encouraging this approach within the workplace. The main functions of workplace
forums are consultation and joint decision-making. Traditionally, in African culture,
dikgoro served as forums for consultation and joint decision-making where important
decisions affecting the community were taken. This is a horizontal approach according
to which not all decisions are made from the top, giving all parties an opportunity to
present their views. This approach humanises the law because decisions made are
generally based on consensus. This approach also encourages and allows for a
transparent and accommodative way of dealing with matters.
Study the distinction between a workplace forum and a trade union in paragraph 1 of
chapter 13.
(a) Establishment of workplace forums
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A forum may be established in a workplace where there are more than 100 employees.
This is done through a collective agreement, through the intervention of the CCMA or
by a trade union. Unlike trade unions, workplace forums are not involved in wage-
related issues and cannot embark on industrial action. All employees, except senior
managerial employees, can be members of a workplace forum.
Do you think workplace forums are necessary and, if so, why?
(b) Functions of workplace forums
A workplace forum must be consulted on certain matters and has joint decision-
making powers in respect of other matters. Study these matters in paragraphs 4, 5
and 6 of chapter 13 of the prescribed book.
The functions of a workplace forum are outlined in the following summary:
Consultation The forum makes representations and advances alternative

proposals on a matter to the employer. The employer must
consider the proposals and respond to them. If the proposals are
not acceptable, the employer must provide reasons.
Matters for consultation:
 restructuring of the workplace (e.g. the introduction of new

technology)
 changes in the organisation of work
 the total or partial closure of a plant
 mergers and transfers of ownership if they will affect
employees
 the retrenchment of employees
 exemptions from a collective agreement or the law
 job grading
 criteria for merit increases or the payment of discretionary
bonuses
 education and training
 product development plans
 the promotion of exports
Joint decision- The employer must consult and reach consensus with the
making workplace forum.
Matters for joint decision-making:
 disciplinary codes and procedures

 proper regulation of the workplace
 measures to protect and advance persons disadvantaged by
unfair discrimination
 changes to employer representatives on boards of employer-
controlled schemes with regard to social benefits
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Study paragraph 7 of chapter 13 regarding workplace forums and the disclosure of

information.
Study paragraph 8 of chapter 13 regarding the organisational rights of workplace

forums.
ACTIVITY 1
Explain how workplace forums are established.
FEEDBACK 1
A forum may be established in a workplace where there are more than 100 employees.
This is done through a collective agreement, through the intervention of the CCMA or
by a trade union.
QUESTIONS
1. Draw a distinction between consultation and joint decision-making as functions

of workplace forums.
2. Draw a table with two columns indicating three matters in respect of which
consultation must take place and three matters that must be settled by way of
joint decision-making in a workplace forum.
Consultation Joint decision-making
 
 


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STUDY UNIT 11
STRIKES AND LOCK-OUTS
OUTCOMES
 define a strike
 define a lock-out
 mention and to explain procedural requirements for a protected strike and lock-
out and to apply them in a practical situation
 explain what matters of mutual interest are
 mention and to explain the limitations/prohibitions on strikes and lock-outs
and to apply them in a practical situation
 explain the legal consequences of a protected strike and to apply them in a
practical situation
 explain the legal consequences of an unprotected strike and to apply them in a
practical situation
 define a secondary strike
 mention and to explain procedural requirements for a protected secondary
strike and to apply them in a practical situation

 SA Police Services v Police & Prisons Civil Rights Union (2010) ILJ 2844 (LAC)
11.2 INTRODUCTION
At the end of a collective bargaining process, the parties may either reach agreement
or fail to do so. If agreement is reached, a collective agreement is concluded. If no
agreement is reached, the parties may agree on mediation or arbitration, or a party
may decide to put pressure on the other party through industrial action. This study
unit deals with industrial action. In the case of employees, industrial action can take
the form of strikes and secondary strikes, while employers have recourse to lock-outs.
The use of power sounds inhumane; however, before any form of industrial action may
take place, certain procedural requirements must be met in order to ensure fairness
and justice. If these requirements are not met, then the action will not be protected
and there will be negative consequences.
Both strikes and lock-outs are essential elements of collective bargaining. However,
strikes and lock-outs should be used as measures of last resort. A strike is used by
employees to support their demands and to promote and defend their employment-
related interests; a lock-out is used by an employer to support its employment-related
demands.
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In South Africa, the right to strike is protected by the Constitution, which guarantees
every worker the right to strike.
The Constitution, however, does not grant employers the right to lock out employees.
The right of employers to lock out employees is implied in the express protection of the
right to bargain collectively. Section 64(1) of the LRA provides that every employee has
the right to strike and every employer has recourse to lock-out.
It is important to distinguish between the different types of industrial action and to

know when such action will be protected in terms of the LRA.
This study unit also deals with the limitations on the right to strike and the limitations
on recourse to lock-out. It focuses on the specific limitations/prohibitions in terms of
section 65 of the LRA. These are instances where employees may not strike and
employers may not lock out employees, for example when there is an agreement that
regulates the issue in dispute and if workers are engaged in essential services.
The legal consequences of protected and unprotected strikes and lock-outs are also
discussed in this study unit.
Why do you think it is important for employees to have the right to strike?
(a) Legislative protection of the right to strike and lock-out
Section 23 of the Constitution protects the right of every worker to strike, but it does
not grant employers the right to lock out employees. Both the right to strike and
recourse to lock-out are regulated and protected by Chapter IV of the LRA. Neither of
these rights is directly protected in terms of ILO conventions, but they are indirectly
protected through Conventions 87 and 98.
(b) Protected industrial action
A strike and a lock-out must comply with the following requirements set by the LRA in
order to be protected: the action must comply with the definition of “strike” or “lock-
out”; it must comply with the procedural requirements in terms of section 64 of the
LRA; and there should not be any limitations in terms of section 65 of the LRA.
Requirement 1: Definition
The action has to comply with the definition of a strike or a lock-out to qualify for
protection. Study the definitions of these two concepts in paragraphs 4.2 and 4.3 of
chapter 14 of the prescribed book.
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Each definition has important elements that you should know. The three elements of a
strike are as follows (study these elements in paragraphs 4.2.1–4.2.3 of chapter 14 of
the prescribed book):
refusal to work The refusal can be partial or complete, or may

entail the retardation or the obstruction of
work. Work includes overtime work.
by persons employed by the same or The right to strike cannot be exercised

different employers individually; there must be collective action.
for the purpose of remedying a If there is no dispute of mutual interest

grievance or resolving a dispute in between the parties, the action will not comply
respect of any matter of mutual with the definition.
interest between an employer and an
employee
Collective labour law promotes oneness even when it comes to strikes, since an
individual employee is not allowed to engage in a strike action. The right to strike can
only be exercised collectively. This is in line with the saying kopano ke matla (unity is
power) and the ethos of ubuntu, which encourages solidarity.
The two elements of a lock-out are as follows (study these elements in paragraphs
4.3.1 and 4.3.2 of the prescribed book):
the exclusion of employees from the It is not a lock-out if the employer excludes an
employer’s workplace individual employee from the workplace.
for the purpose of compelling them to If the purpose is not to compel employees to
accept a demand in respect of any accept a demand in respect of a matter of
matter of mutual interest. mutual interest, the action will not comply with
the definition.
Take note that for an action by employees to constitute a strike and for an action by
an employer to constitute a lock-out, all the stated elements must be present. It is
important to understand these definitions because if an action does not fall within the
prescribed definition, it will not constitute a strike or a lock-out and it might even be
regarded as a breach of contract or a delict (which could result in a claim for
damages).
Requirement 2: The procedural requirements for strikes and lock-outs
Study paragraph 5 of chapter 14 of the prescribed book in this regard.
Employees have to follow a certain procedure before they can embark on a protected
strike and employers must follow a certain procedure before they can embark on a
protected lock-out. In this way, the LRA provides the rules for fair play in collective
bargaining. A strike or a lock-out will be protected if these requirements have been
met, except in a few exceptional cases, which will be discussed later.
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The purpose of the procedural requirements is to give parties the opportunity to try to
resolve their dispute before they engage in a strike or a lock-out. The procedural
requirements that the LRA prescribes in order for strikes and lock-outs to be protected
are as follows:
(i) The issue in dispute. The LRA stipulates that there must be an issue in dispute.
In addition, it stipulates that the parties must try to resolve the issue by first
referring it to a bargaining council (if there is one for the sector) or to the CCMA (if
there is no bargaining council) for conciliation.
(ii) Certificate of outcome. The forum to which the dispute was referred must
attempt to resolve it through conciliation within 30 days of the referral. If no
agreement is reached, a certificate must be issued to indicate that the matter has
not been resolved.
(iii) Notice. If the matter is not resolved or 30 days have passed, the LRA prescribes
that at least 48 hours’ written notice must be given before the commencement of
the strike or lock-out. In cases where the state is the employer, at least seven days’
notice must be given. In cases where the employer is a member of an employers’
organisation, notice must be given to the employers’ organisation. This promotes
fairness, which is a constitutional value and is in line with ubuntu, since the
employer is informed in advance that action will be taken against it, giving the
employer an opportunity to prepare itself for the looming action.
ACTIVITY 1
Read the following sets of facts and decide whether the actions comply with the first
element of the definition of a strike:
 Members of AA Union who work in the dispatch department of Strong

Appliances embark on an action in terms of which they report for duty every
morning, but refuse to work during lunchtime.
 Employees in the data capturing section of a company lock the doors to their
offices and refuse to receive any new information for capturing for a few hours
every day. During this time, they carry on with the work that they have on their
desks, but do not accept any new work.
FEEDBACK 1
The actions in both sets of facts comply with the first element of a strike. Both actions
constitute a partial refusal to work. In the first case, employees are refusing to work
their full hours. In the second case, employees are refusing to perform all the tasks
allocated to them. Remember that although these actions comply with the first
element of the definition of a strike, this does not mean that they are strikes. For this
to be the case, the other elements of the definition must also be complied with.
The LRA does not prescribe the details that the notice must contain; it only prescribes
that it must be in writing and must be issued at least 48 hours before the action.
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The exceptions where the parties do not need to follow the procedures prescribed by
the LRA are as follows:
 in cases where the parties to a dispute are members of a bargaining council and
the dispute followed the procedure prescribed by that council’s constitution
 in cases where the parties are party to a collective agreement that prescribes the
procedures that have to be followed before a strike or a lock-out, and those
procedures have been followed
 in cases where employees strike in response to an unprotected lock-out or an
employer resorts to a lock-out in response to an unprotected strike
 in cases where a strike takes place because the employer has unilaterally changed
the terms and conditions of employment, and the employer has failed to rectify this
despite prior warnings
If an employer refuses to bargain with a union, the dispute must be referred for
advisory arbitration, after conciliation has failed, before notice of the strike can be
issued.
Requirement 3: Prohibitions or limitations on strikes and lock-outs
Study all these limitations in paragraph 6 of chapter 14 of the prescribed book.
The Constitution recognises and accepts the principle that under certain
circumstances, rights may be limited, provided that the limitation complies with
section 36(1) – the limitation clause. In view of this provision, the LRA, in section 65,
limits or prohibits the right to strike and recourse to lock-out.
If a strike or a lock-out takes place in spite of these limitations or prohibitions, the

strike or lock-out will be unprotected, even if the procedural requirements discussed
above have been met.
In terms of the LRA, strikes and lock-outs are prohibited
when striking or locking out is If the parties agreed that they would not
prohibited in a collective agreement engage in industrial action on a certain issue,
they are not allowed to do so.
when arbitration is prescribed by The parties are bound by any agreement in

agreement terms of which the issue should be arbitrated.
when the parties have a right to refer If a party has the right to refer the dispute for
a dispute for arbitration or arbitration or to the Labour Court for
adjudication adjudication, that party may not resort to a
strike or a lock-out in order to resolve the
dispute.
in cases where employees work in Employees who are engaged in the provision of
essential or maintenance services essential and maintenance services are
(make sure you understand this prohibited from striking, unless there is an
important limitation, which is agreement regarding minimum services.
discussed in paragraphs 6.6.1 and
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6.6.2 of your prescribed book)
when an award, an agreement or a No one may take part in a strike or a lock-out if

determination regulates the issue he or she is bound by an arbitration award, an
agreement or a determination by the Minister of
Labour that regulates the issue.
(c) Secondary strikes
Study paragraph 7 of chapter 14 of your prescribed book and make sure you
understand how a secondary strike differs from a primary strike (discussed above). A
primary strike is the main strike held by employees who have a dispute with their
employer. A secondary strike is a strike held by employees who are employed by
another employer and who do not have a dispute with their employer. The strike is in
support of employees who are engaged in a primary strike.
A secondary strike will be protected if the primary strike is protected; if strikers gave
their employer seven days’ written notice before the strike; and if the harm to the
secondary employer is not more than that which is necessary to make an impact on
the primary employer. Through secondary strikes, which are also known as sympathy
strikes, employees show solidarity and sympathise with other workers who are in
dispute with their employer. This is again in line with ubuntu, which dictates that
people should support those who are in need of support.
Do you think it is fair for employees of a secondary employer to engage in a strike

against their employer with whom they do not have a dispute?
(d) Legal consequences of strikes and lock-outs
(i) Protected strikes and lock-outs
If all the requirements set by the LRA for a strike and a lock-out to be protected have
been met successfully, the strike or lock-out will be protected. Consequently, the
employees or the employer (whatever the case may be) will enjoy the following
protection:
 The employee may not be dismissed, except in the case of misconduct and for the
operational requirements of the business.
 The action by the employer or the employees does not constitute a delict or breach
of contract.
 The employer may not discriminate against an employee because of his or her
involvement in the strike.
 No claims for compensation can be instituted against employees or employers.
This is in line with the constitutional value of fairness and with ubuntu, which
encourages compliance with the rules. Those who comply with the rules should be
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protected, and there must be consequences for those who do not comply with the
rules, as will be seen below.
What is your opinion about strikes and violence in South Africa?
Other consequences:
 No claims for compensation can be instituted against employees who participate in

a protected strike.
 The employer does not have to pay employees who are on strike or are locked out,
since the “no work, no pay” rule applies. What is your opinion of this rule? If the
remuneration of employees includes payment in kind in the form of
accommodation, the provision of food and other basic amenities of life, the
employer may not withhold that payment in kind during the strike or lock-out.
However, the employees must request that the payment in kind continue.
 No replacement labour may be used by the employer if the service is designated as
a maintenance service or if the employer embarks on an offensive lock-out.
(ii) Unprotected strikes and lock-outs
Study paragraph 9 of chapter 14 of the prescribed book
The consequences of an unprotected strike or lock-out are as follows:
Interdict
The Labour Court has jurisdiction to grant an interdict or an order restraining any
person from participating in or acting in contemplation or furtherance of an
unprotected strike.
Compensation
The Labour Court may order the payment of “just and equitable compensation” to
either employees or employers who suffered any loss caused by an unprotected strike
or lock-out. This is in line with African practice: if a person who caused damage to
another is found guilty in a kgoro, that person has to pay damages or compensate the
victim for the damage caused. This is also in line with the ubuntu principle of fairness,
which is entrenched in the Constitution.
Dismissal of strikers
Strikers who participate in an unprotected strike, or who commit certain forms of

conduct in contemplation or furtherance of an unprotected strike, may be dismissed.
Participation in unprotected action will be the reason for such a dismissal. The Code
of Good Practice: Dismissal provides that participation in an unprotected strike
constitutes misconduct. However, as is the case with any other act of misconduct,
participation in an unprotected strike does not necessarily justify dismissal. The
dismissal will only be fair if it is both substantively and procedurally fair. This again
encourages the constitutional value of fairness and is in line with ubuntu, according
to which a person cannot be punished unless it is clear that he or she failed to comply
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with certain rules or failed to follow a certain prescribed procedure, otherwise the
punishment will be regarded as unfair and unjustified.
 Substantive fairness of dismissal for participation in an unprotected strike
The Code of Good Practice: Dismissal provides that the substantive fairness of the
dismissal of strikers who participated in an unprotected strike must be evaluated in
the light of
 the seriousness of the failure to comply with the LRA

 attempts to comply with the provisions of the LRA
 any unjustified conduct by the employer
 Procedural fairness of dismissal for participation in an unprotected strike
The Code of Good Practice: Dismissal provides that the dismissal of strikers who
engaged in an unprotected strike must be procedurally fair; it sets out the procedure
that must be followed, which is as follows:
 The employer must contact a union official “at the earliest opportunity” before
dismissing the strikers to discuss the course of action it intends to follow, giving
the union the opportunity to persuade the employer not to dismiss the strikers and
allowing the workers to return to work.
 The employer must give the strikers an ultimatum before dismissing them. The
following factors are important regarding an ultimatum:
 The purpose of an ultimatum is to convince strikers to return to work.
 The ultimatum must be communicated to the strikers in a medium they
understand (it should be issued in their language if necessary).
 The ultimatum must be clear and unambiguous, leaving no doubt as to what is
expected of the employees.
 The employees should be given sufficient time to reflect on the ultimatum, to
hold meaningful discussions with their union and to make rational decisions.
 If the ultimatum is issued to a collective bargaining representative (a union
representative) within a reasonable time, it will constitute sufficient notice to
employees.
 Once the strikers have complied with the ultimatum, the employer can no
longer take disciplinary action against them for taking part in the
unprotected strike.
 If the workers, however, elect not to make representations, their dismissal
will not be considered to be procedurally unfair.
 In circumstances where it cannot reasonably be expected from the
employer to issue an ultimatum, the employer may summarily dismiss the
strikers.
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ACTIVITY 2
Answer the following questions:
 Discuss whether employees who participate in a protected strike may be

dismissed.
 Briefly discuss the “no work, no pay” principle.
FEEDBACK 2
 Employees who participate in a protected strike may not be dismissed for their
participation in the strike, otherwise that will amount to an automatically unfair
dismissal. However, employees who participate in a protected strike may be
dismissed if they commit acts of misconduct, or for operational reasons.
 The “no work, no pay” rule is a common law rule that is based on the fact that a
contract of employment is reciprocal in nature, which means that the employee
must render his or her services and the employer must remunerate the
employee. Therefore, if the employee does not render services during a protected
or unprotected strike, the employer is not obliged to remunerate the employee.
However, if payment includes payment in kind, for example accommodation,
employees may request the employer to continue with the payment and the
employer may later claim this from employees.
QUESTIONS
1. Under which circumstances do employees need not comply with the procedural
requirements for a protected strike in order for the strike to be protected?
2. Discuss whether employees engaged in essential services may participate in a
strike action.
3. Read the facts in the following extract carefully and then answer the questions
that follow:
Bazaar Ltd carries on business as a manufacturer and distributor of tyres. It operates

from various branches, including Mafikeng, Alberton and Midrand. Bazaar Union, a
registered union, has members in all branches of Bazaar Ltd.
A dispute arose at the Mafikeng branch between the employer and the union.
Members of the union refused to work overtime and, as a result, the union called on
its members to go on strike after the dispute had been referred for conciliation. Two
weeks later, the matter was still not resolved and the union members employed at the
other branches of Bazaar Ltd also went on strike in support of employees at the
Mafikeng branch. The union argued that the strike at the other branches constituted a
secondary strike, but Bazaar Ltd argued that the strike conducted by the workers at
the other branches did not constitute a secondary strike.
(a) Were the workers at the other branches engaged in a primary strike or a
secondary strike?
(b) Was the strike action at the employer’s other branches protected in terms of the
LRA?
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STUDY UNIT 12
PICKETS AND PROTEST ACTION
OUTCOMES
 define a picket
 define a protest action
 mention and to explain procedural requirements for a protected picket and to
apply them in a practical situation
 mention and to explain procedural requirements for a protected protest action
and to apply them in a practical situation
 Chapter 15 of the prescribed book
12.2 INTRODUCTION
In this study unit, other forms of industrial action such as pickets and protest action
are discussed. Employees and trade unions often pursue other, broader interests
beyond the workplace in order to advance economic interests. However, they may not
use strike action for this purpose.
The LRA affords employees and trade unions the right to participate in protest action
as a form of industrial action in pursuit of socio-economic interests. The role that
trade unions play in society therefore extends to more than just work-related matters.
Trade unions often engage in campaigns that go beyond matters of mutual interest
between employers and employees. Trade unions and their federations in South Africa
played an important role in putting pressure on the government to bring about
political changes in the country. This wider role that trade unions and workers play is
in line with ubuntu, since their pursuit of socio-economic interests benefits not only
workers, but also the whole of society.
12.3.1 Picketing
Striking is the most effective weapon that a trade union can use against an employer,
but in order to exert more pressure on the employer during the strike, the trade union
may encourage its members to engage in another action, called a picket, to advance
the object of the strike. A picket is therefore conduct in contemplation or furtherance
of a strike.
Picketing is a way of showing solidarity, which is inherent in ubuntu. Picketing raises
awareness and binds a group of people together for one cause. In traditional African
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communities, the collective action of a group of people or families ensures success in

various endeavours.
Study paragraph 2.2 of chapter 15 of your prescribed book and item 3(1) of the Code
of Good Practice: Picketing regarding the purpose of a picket.
Do you think pickets are important and, if so, why?
(a) Requirements for protected pickets
During a picket, employees who are on strike may stand at or near their workplace to
try to persuade employees who are not on strike to strike, or to convince customers or
suppliers of the employer not to deal with the employer. As is the case with strikes and
lock-outs, a picket will be protected if it complies with certain requirements. The
action must comply with the definition of a picket and with the requirements set by
section 69 of the LRA. This again encourages the constitutional value of fairness and
is in line with ubuntu, which encourages compliance with the law and promotes peace
between parties. An action by employees that does not comply with the set procedure
will not be protected.
Requirement 1: Definition
Study paragraph 2.2 of chapter 15 of the prescribed book. The purpose of the action
must be to encourage non-striking employees and members of the public in a peaceful
way to oppose a lock-out or to support a protected strike.
Requirement 2: Procedural requirements
In terms of section 69 of the LRA, the requirements are as follows:
 The picket must be authorised by a registered trade union. Unregistered trade

unions and employees on their own cannot authorise a picket. This requirement
encourages trade unions to register and to be regulated.
 The picket must be staged for the purpose of demonstrating peacefully.
Intimidation and violence will result in civil and criminal liability. This peaceful
element of a picket is an important element of ubuntu, which discourages violence
by employees.
 The picket must be in support of a protected strike or in opposition to a lock-out.
Pickets in support of unprotected strikes will not be protected.
Pickets may take place at any place to which the public has access, but are usually
held outside the premises of an employer. A picket may even be held on the premises
of an employer, on condition that the employer give permission for this. However, such
permission may not unreasonably be withheld. Study paragraph 2.4 of chapter 15 of
the prescribed book regarding the places where picketing can take place.
Study paragraph 2.5 of chapter 15 of the prescribed book regarding picketing rules
and conduct during a picket.
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(b) The legal consequences of protected and unprotected pickets
As is the case with strikes and lock-outs, there are legal consequences to pickets that
are protected and pickets that are unprotected. This again encourages employees and
their trade unions to comply with set requirements. The legal consequences of a
protected picket are as follows:
 An employee who takes part in a protected picket does not commit a delict or
breach of contract.
 An employer may not sue employees or their trade union for damages suffered
during a protected picket.
 No disciplinary action may be taken against an employee for participating in a

protected picket, except for acts of misconduct (such as intimidating or
threatening others).
The consequences of an unprotected picket are exactly the opposite of those of a

protected picket.
ACTIVITY 1
Members of AZ Union engage in a picket in support of a demand that the government

change the tax system.
Discuss whether the action will indeed qualify as a picket in terms of the LRA.
FEEDBACK 1
The action will not qualify as a picket in terms of the LRA, because a picket must be in
support of a protected strike or in opposition to a lock-out. The demand mentioned
above is not a matter of mutual interest between the employer and employees, but a
socio-economic matter.
12.3.2 Protest action
After you have studied the section on protest action, you must be able to explain the
purpose of protest action and how it differs from the purposes of strike action and
picketing.
(a) Requirements for protected protest action
There are two requirements for protected protest action: the action must comply with
the definition of protest action, and the action must comply with all the procedural
requirements in terms of section 77.
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Requirement 1: Definition of protest action
Employees and trade unions often pursue interests that are of more general
importance (i.e. beyond the interests of the workplace) in order to advance economic
development. However, they cannot strike for these purposes. The LRA affords
employees and trade unions the right to engage in protest action as a form of
industrial action in order to pursue socio-economic interests.
Study the definition of protest action in paragraph 3.1 of chapter 15 of the prescribed
book. Take note that the difference between a strike and a protest action lies in the
purpose of the actions. The purpose of a strike is “to remedy a grievance or resolve a
dispute in respect of any matter of mutual interest between employer and employee”,
whereas the purpose of a protest action is “to promote or defend the socioeconomic
interests of workers”.
Ubuntu is demonstrated in protest action where workers pursue not only their
interests, but also the interests of others. Through protest action, workers put
pressure on the powers that be (government) to give attention to socio-economic
issues. During these actions, employers are not required to pay employees because
they will not be performing their duties as per their contracts of employment. In such
cases, workers sacrifice their wages for the benefit of all, which is an element of
ubuntu.
Do you think protest action is important and, if so, why?
Requirement 2: Procedural requirements
Note that employees engaged in essential and maintenance services may not take part
in protest action. Protest action will be protected if it complies with the following
procedural requirements:
 A registered trade union or federation of trade unions must call the action.
 The National Economic, Development and Labour Council (Nedlac) must be
informed of the protest action, its nature and the reason for the action.
 Nedlac or any other appropriate forum must have considered the matter giving
rise to the protest action.
 Nedlac must have been given 14 days’ notice of the intention to commence the
protest action.
(b) Legal consequences of protected and unprotected protest action
If the above-mentioned requirements are complied with, the protest action will be
protected in the same manner as protected strikes and lock-outs. No civil claim may
be brought against participating employees, and they may not be dismissed for their
participation in the action. However, in terms of section 77(4) of the LRA, the action
will not be protected if employees participate in it in breach of a Labour Court order or
when employees otherwise act in contempt of an order of the Labour Court made in
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terms of section 77. If the action is not protected, employees may be interdicted, and
damages may be claimed from employees who participated in the action. Such
employees may also be fairly dismissed.
ACTIVITY 2
Members of trade unions affiliated to the South African Federation of Trade Unions are
participating in an action to demand a change in the education system that has just
been introduced by the government.
Discuss whether these workers are engaged in a strike action or a protest action.
FEEDBACK 2
The action by workers does not qualify as a strike action because its purpose is not to
remedy or resolve a dispute with regard to matters of mutual interest between
employees and their employers. Instead, the action qualifies as a protest action
because it relates to socio-economic interests of workers.
QUESTIONS
1. Can employees engaged in essential services participate in a protest action?

2. What are the procedural requirements for a protected picket?
3. What are the procedural requirements for a protected protest action?
Best wishes for your studies!
YOUR LECTURERS
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MRL3702/102/3/2019

Tutorial letter 102/3/2019

2. The prescribed book

3. Overview of the prescribed book

STUDY UNIT 1: The protection of employees in terms of legislation

STUDY UNIT 2: The impact of common law on contracts of employment

STUDY UNIT 3: The Basic Conditions of Employment Act

STUDY UNIT 4: The Employment Equity Act

STUDY UNIT 7: Fair and unfair dismissal and dispute resolution

STUDY UNIT 8: Freedom of association, trade unions’ rights and employers’

STUDY UNIT 9: Collective bargaining

STUDY UNIT 10: Workplace forums

STUDY UNIT 11: Strikes and lock-outs

STUDY UNIT 12: Pickets and protest action

2. THE PRESCRIBED BOOK

The prescribed book for this module is:

3. OVERVIEW OF THE PRESCRIBED BOOK

The prescribed book consists of four parts:

Part I: Introduction to labour law

PART I: INTRODUCTION TO LABOUR LAW

It is important to understand that a contract of employment forms the basis of the

PART II: RULES APPLICABLE DURING THE COURSE OF EMPLOYMENT

 the conclusion of a valid contract

Part II consists of six chapters:

 Chapter 2 deals with the exclusive protection of employees provided by labour

 the prevention of occupational injuries and diseases (in terms of the

 In Chapter 8, the transfer of a business as a going concern is discussed.

PART III: RULES APPLICABLE TO THE TERMINATION OF THE EMPLOYMENT

At the start of the employment relationship, it is important to determine whether a

PART IV: RULES APPLICABLE TO COLLECTIVE BARGAINING

At the end of this study unit, you should be able to

 define the term “employee”

1.1 PRESCRIBED MATERIAL

 chapter 2 of the prescribed book

In this study unit, we discuss the protection of employees in terms of labour

1.3 IMPORTANT MATTERS TO UNDERSTAND

1.3.1 An employee and an independent contractor

Study paragraphs 1 and 2 of chapter 2 of the prescribed book.

It is important to know the difference between an employee and an independent

Discuss whether Alto is Brian’s employee or an independent contractor. In your

An independent contractor is contracted to perform a specified task, while an

1.3.2 Non-standard employees

Study paragraph 4 of chapter 2 of the prescribed book.

Non-standard employees are regulated and protected in terms of Chapter IX of the

Khathu is employed by BB Manufacturers to repaint their workshop. Discuss whether

A fixed-term employee’s contract of employment terminates at the occurrence of a

1.3.3 Employees excluded from the LRA

The following categories of employees are excluded from the LRA:

 members of the South African National Defence Force (SANDF)

1.3.4 Protection and regulation of illegal and foreign workers

Study paragraph 6 of chapter 2 of the prescribed book.

What is your opinion about the Kylie and Discovery decisions?

1.3.5 Definition of “employer”

Study paragraph 7 of chapter 2 of the prescribed book.

1.3.6 The position of temporary employment services (TES)

Study paragraph 8 of chapter 2 of the prescribed book.

1.3.7 Employment Tax Incentive Act 26 of 2013

Study paragraph 9 of chapter 2 of the prescribed book.

1.4 SELF-ASSESSMENT QUESTIONS

1. Define “contract of employment”.

 explain a restraint of trade clause in an employment agreement

2.1 PRESCRIBED MATERIAL