The Dangerous Dozen

The Dangerous Dozen

BY   lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]. Go to:

South Africa’s labour legislation was largely conceived by our country’s trade unions. As a result the statutes heavily protect employees and, in particular, protects the jobs of workers. The Labour Relations Act (LRA) and its Schedule 8 fall short of prohibiting the dismissal of workers, but only allows such dismissals to stand if the employer has proved that the employee deserved to be dismissed despite mitigating circumsances and that the employee had a fair hearing prior to dismissal.

The Labour Relations Act has twelve sections devoted, in effect, to protecting employee’s jobs and to the imposition of extremely stringent obligations on employers contemplating the dismissal of employees. These 12 sections are heavily reinforced by the Code of Good Practice: Dismissal attached to the LRA in the form of Schedule 8. This Schedule is itself divided into eleven items or sections all devoted to the protection of the jobs of employees. This Code stresses that dismissal must be the last resort taken by employers and details numerous factors and steps that employers must consider and carry out before contemplating dismissal. The code focuses on protecting employees from dismissal in circumstances of alleged misconduct, poor work performance, discrimination, illness, injury and strikes. Further reinforcement comes from the Code of Good Practice on Dismissal Based on Operational Requirements that contains numerous items setting out the employer’s obligations when contemplating retrenchment. Here the main focus is the employer’s obligation to find ways of avoiding termination of the worker’s employment.

But perhaps the most powerful reinforcement of these provisions are the countless employee-friendly decisions at CCMA, bargaining councils, Labour Court and Labour Appeal Court. The arbitrators and judges presiding over these cases are obliged by the LRA to assume the employer to be guilty until it proves itself innocent of unfair dismissal. This principle is implemented despite that fact that it directly contravenes section 35(3)(h) of the Constitution of South Africa which provides that all accused persons (including juristic persons such as employers) are entitled to be assumed innocent until proven guilty.

This means that the requirement to protect the jobs of South African employees is considered by the authors of the LRA to be more important than the innocence presumption provision of the Constitution; a provision that has been upheld and respected in the constitutions of civilized and democratic states around the world for well over a century.

In practice the above means that there are no short cuts for employers. Employers either follow the law or lose the case. For example, in the case of Mthethwa vs Capitol Caterers (2007, 5 BALR 469) the employee, a catering manager was apparently told that he had ‘dismissed himself’ after he had failed to attend work for two weeks. In a default decision the CCMA arbitrator found that:

  • Absence from work due to illness or injury will only merit possible dismissal if its duration is unreasonable
  • There is a difference in law between absenteeism and abscondment
  • Absenteeism rarely warrants dismissal for a first offence
  • Disciplinable absenteeism normally contains the elements that the employee is not at work, no permission is given for the absence and the employee failed to inform the employer of the reason for his absence
  • An employee on authorized absence cannot be guilty of absenteeism unless the sick leave is being abused
  • There is no principle of law to support the view that the employer appeared to have had that employees “dismiss themselves” after a certain period of unauthorized absence.
  • The dismissal was both procedurally and substantively unfair
  • The employer was required to reinstate the employee with full back pay.

In Ngubane vs Shell Ridley Park Motors (2011, 4 BALR 353) Ngubane’s dismissal was found to be unfair because he had not been given an opportunity to state his case.

These cases are typical of thousands of cases where employers apply outdated principles and fail to understand the fact that, over the past 26 years, the labour law pendulum has swung very far to the side of employees and job preservation. All of this makes it clear that, in South African law, the jobs of employees are sacrosanct. Thus, employers must exercise extreme care before treading on the rights of employees.

While many employers have successfully dismissed errant employees it will come as no surprise that such success is normally based on the fact that the employer has carefully navigated all the legal protections of employees. This the employers have done via appreciating the legally disadvantaged situation they are in and taking strong steps towards the leveling of the playing fields. Accessing labour law expertise is the first step in this quest.

To book for our 12 August webinar on DEFEATING THE DANGERS OF DISMISSAL please contact Ronni on [email protected] or 0845217492.



By  Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go

Strikes in South Africa are as ‘normal’ as warm weather. However, strikes have more recently occurred less frequently probably due to the reluctance of unions to weaken the employer and to spark resulting retrenchments. In the light of this partial mindset change the Massmart strike that has entered its second week is somewhat unexpected. The workers are likely to be aware that retailers are struggling with rising costs and lower public purchasing power. In this context this strike is a sign that employees are prepared to risk their jobs in order to get better working conditions.

We have had, for decades, a deadly vicious circle. That is, workers are not earning enough to be able to support their families. They go on strike for better pay and/or working conditions. If the strike goes on long enough the employer gives in and pays an increase that is well above what it has budgeted for. This erodes profits and sometimes causes financial losses. The employer then compensates for this by cutting wage costs through the implementation of retrenchments. The ensuing job losses reduce the public’s buying power and businesses suffer losses. The businesses then tighten their belts by reducing pay increases and/or spending on working conditions. The employees respond by going on strike, and the vicious spiral gets more vicious.

This ever more vicious spiral is more deadly than Covid, more poisonous that state capture and more disastrous than power outages. We are now 27 years into the new political dispensation but there is no sign whatsoever of anyone in leadership positions making any credible effort to reverse this vicious spiral, this toxic industrial relationship and this cancerous damage to our economy.

So called leaders in government, business and labour need, for their own self interest and for the betterment of South Africa’s people, to remove there hands from covering their eyes and use those hands to fix this vicious spiral. If these so-called leaders refuse to do their duty, then civil society needs to take over this responsibiity. This should not be done via any kind of insurrection. Instead, civil society should offer to government and NEDLAC a new labour economic system that turns the current vicious spiral upside down and creates a positive, upward economic spiral; and then see to it that the new system is implemented.

The new labour economic system needs to do away with the competing ideologies of socialism and capitalism. Those tenets of socialism that demand nationalisation of businesses and that strangle the operation of businesses need to be discarded in favour of the unarguably positive socialist tenet of fairness for all. Likewise, the exploitative tenet of capitalism needs to be replaced by truly inclusive free market principles.

In this way the positive aspect of a free market economy (that being the ability to generate wealth) will be combined with the positive aspect of socialism (that being fairness for all). This merging of the positives of socialism and capitalism will do away with the conflict between the two ideologies and create a new, common ideology called Shareism. Business owners and their workers will no longer be fighting over money because they will be partners in making and sharing the money.

Then the need for strikes will become redundant because the workers will be getting more money due to sharing in the profits they make. And they will not want to strike because that would erode the profits in which they have a share. And retrenchments will be rendered unnecessary by the increased profits generated by Shareism.

If our current so-called leaders refuse to take the responsibility to make this happen by implementing Shareism then civil society should peacefully but robustly see to it that new leaders take on this responsibility. It is the ordinary citizens of South Africa who are suffering most and shareism is their escape from this injustice.

To view our expert team debating contentious labour law topics please go to and click on the Labour Law Debate icon in the main menu.

Take Mitigating Circumstances Seriously

Take Mitigating Circumstances Seriously

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888 7944 or 082 852 2973 or on e-mail address: [email protected]. Go

Too often, when an employer finds an employee guilty of a serious offence, the employer fires the employee right away. However, being guilty of a very serious offence does not automatically entitle the employer to fire the employee. The employer must consider other remedies for misconduct which could include:

  • Dismissal – the most severe corrective action
  • Demotion – provided that the employee is given the choice of dismissal or demotion
  • Suspension without pay – provided that the employee is given the choice of dismissal or suspension
  • A warning or final warning – which must be very carefully worded
  • Training – where lack of skill/knowledge is the cause of the problem
  • Treatment – for example where addiction or alcoholism is an important factor

Before deciding on the penalty or corrective action the employer should Consult the disciplinary code and consider, amongst other factors:

  • the nature and seriousness of the misconduct
  • aggravating circumstances
  • the employee’s personal circumstances and length of service
  • the employee’s disciplinary record
  • extenuating circumstances.

Extenuating circumstances are those related to the case itself that might render the misconduct less serious. For example, where an employee refuses to obey an instruction from a manager due to a genuinely mistaken belief that the manager did not have the authority to give the instruction, this might merit a lighter sanction. This is because, while the employee disobeyed the instruction, he/she did not do so out of defiance but rather out of ignorance.

Arbitrators will not hesitate to overturn dismissal decisions that are substantially out of line with what is just in terms of the unique circumstances of each individual case.

For example, in the case of NUM obo Khanye vs South African Region Business Services (2001, 1 BALR 92) the employee was dismissed for driving a vehicle without permission and without a licence and for damaging the vehicle in an accident. The arbitrator decided that:

  • The employee had previously received and signed a memorandum stating that no employees were to drive company vehicles without a licence and that failure to comply with this rule would result in serious disciplinary measures
  • the employee had used the vehicle due to an emergency at the workplace
  • this was an extenuating circumstance
  • the dismissal was therefore too harsh
  • the employee was to be reinstated.

In the case of of NUMSA obo Madobeng vs Macsteel Tool and Pipe (2006, 10 BALR 982) the employee was dismissed on a charge of assault. The employee’s colleague had accused her of treating the company’s changeroom as a bedroom and of sleeping with her grandfather. A scuffle ensued and the employee was brought to a disciplinary hearing. The arbitrator at the Metal and Engineering Industry Bargaining Council found that:

  • The employee’s conduct did not amount to an assault as the physical contact made during the scuffle was very slight
  • The employer had not disputed the fact that the employee had been provoked by the insult from her colleague
  • The employee had been provoked by her colleague’s insult but the presiding officer of the disciplinary hearing failed to take this into account
  • The employee was to be reinstated with full back pay.

Where employers are unsure as to whether extenuating circumstances exist they should obtain expert labour law advice before acting against the employee.

To view our expert team debating contentious labour law topics please go to and click on the Labour Law Debate icon in the main menu.

Use Automatic Termination Clauses With Caution

Use Automatic Termination Clauses With Caution

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected]. Go to:

According to sections 193 and 194 of the Labour Relations Act (LRA) the awards and orders that can be made against the employer for unfair dismissal are as follows:

o The LRA requires the CCMA or Labour Court to reinstate the employee. This means that the employer must give the employee his/her job back and to pay the employee all remuneration calculated back to the date of the dismissal. The employer must also reinstate all the employee’s benefits retrospectively.

o The LRA also permits the CCMA or Labour Court to order re-employment instead of reinstatement. This means that, while the employer must give the employee his/her job back, this will not be with back pay.

o Even if the employer does not have to take the employee back at all it may still have to pay compensation up to a maximum of 12 months’ remuneration calculated at the employee’s newest rate of remuneration.

o If the dismissal is deemed to be automatically unfair the maximum compensation that may be awarded is 24 months’ remuneration.

o Such compensation is payable in addition to all other payments due to the employee. These could include notice pay, leave pay and even payment for the unexpired portion of the employee’s contract. The Labour Court and CCMA have the powers to make such additional awards by virtue of section 195 of the LRA and section 74(1) of the BCEA. Furthermore, the Labour Court has jurisdiction, in terms of section 77(3) of the BCEA to determine any matter relating to a contract of employment.

Therefore, in an attempt to circumvent all this onerous legislation, employers attempt to avoid having to dismiss undesirable employees by hiring workers on fixed-term contracts. Then, if the employee is seen as unsuitable, the employer merely allows the contract to lapse at its expiry date and says goodbye to the employee. However, this is a dangerous tactic because labour law has closed this loophole.

The main purpose of a fixed-term contract is supposed to be the filling of a temporary job. That is, the most appropriate time to hire an employee on a fixed-term contract is when the job itself is expected to come to an end at a specific time. It can be very dangerous to employ an employee on a fixed-term contract when the job itself is permanent (unless the temporary employee is merely standing for the permanent incumbent who is away on leave or who has temporarily been deployed elsewhere). The reason for this danger is that, according to the LRA, if the employer (even inadvertently) gives the employee a “reasonable expectation” that the contract will be renewed on expiry, the CCMA or bargaining council could force the employer to renew the contract.

In the case of Nape vs INTCS Corporate Solutions (Pty) Ltd (CLL Vol. 19 June 2010 page 103) the employee’s contract was terminated because the employer’s client no longer required his services. The employer argued that the employment contract allowed for automatic termination on these very grounds and that the termination did not constitute a dismissal. The Court disagreed and struck down the employment contract’s provision as it clashed with and was overruled by the provisions of section 189 of the LRA that requires a retrenchment process in circumstances where employers are unable to provide work for the employee.

In the case of Khum MK Investments and BIE Joint Venture (Pty) Ltd v CCMA and others [2020] 4 BLLR 362 (LAC) the employer concluded a five-year service contract with Eskom and recruited 333 employees on fixed-term contracts to perform this work. Eskom then advised Khum that certain specified tasks had been cancelled. Khum in turn issued written notices of termination of their employment contracts to three employees. At the CCMA Khum claimed that the employees were “independent contractors” and that they had not been dismissed because their contracts had terminated “automatically”.
The commissioner dismissed both points, ruled the employees’ dismissals unfair and awarded them compensation equal to the amounts they would have earned during the unexpired portion of their contracts. A review having failed, Khum went to the LAC which noted that the employees’ contracts made no provision for automatic termination before the arrival of their expiry date. The appeal was dismissed with costs.
The wording of this decision appears to imply that, had the contracts indeed made provision for automatic termination the appeal might have been upheld. This creates uncertainty for employers needing to know whether or not such clauses are legally acceptable.

The above shows that employers should not take a chance when dealing with the termination of employment contracts. Instead, they should obtain expert advice from a genuine and reputable labour law expert.

To view our expert team debating contentious labour law topics please go to and click on the Labour Law Debate icon in the main menu.

Insubordination Not Always Dismissible

Insubordination Not Always Dismissible

BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted via 011 888 7944 or 082 852 2973 or [email protected]. Go to:

Item 3(4) The Code of Good Practice: Dismissal (the Code) lists some examples of offences that might merit dismissal even in the absence of prior warnings. Included in this list is the offence of “gross insubordination”. The concept of insubordination means ‘refusal to obey a lawful and reasonable instruction’.

Despite the potential seriousness of “insubordination” employers would be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify dismissal. In fact, refusal to obey an instruction may, in some cases, not even constitute misconduct!

In the case of MITUSA obo Clarke vs National Ports Authority (2006, 9 BALR 861) the employee, a Tug Master, was dismissed for refusing to obey a lawful and reasonable instruction from the tug boat’s Pilot. The Pilot had instructed the Tug Master to tie the tug’s rope to the bow (front) of the ship to be boarded. However, the employee refused to do so on the grounds that it would be dangerous to follow the instruction. As the employee had already received a final warning for insubordination she was fired.

The arbitrator found, amongst other things, that:

  • In terms of the employer’s policy and international practice Pilots carry out boarding operations at their own discretion
  • Decisions of Pilots as regards boarding operations are final
  • The instruction given by the Pilot had been both lawful and reasonable
  • However, when manoeuvring their vessels to carry out the Pilot’s instructions Tug Masters must avoid risks
  • According to standing orders, should the safety of the tug be at risk, the Tug Master may disregard the Pilot’s instruction
  • Had an accident occurred after the rope had been secured to the front of the vessel the Tug master would have been blamed
  • While the Pilot’s instruction was lawful and reasonable and may have been seen by others as being a safe one the Tug Master had the right to a different opinion and to act on that differing opinion because she was responsible for the tug’s safety
  • Contrary to the subsidiary charges the employee had neither been argumentative nor had behaved in an unprofessional manner
  • Despite the validity of the Pilot’s instruction the Tug Master had not committed insubordination; she had exercised her professional discretion as she had been entitled to do
  • The dismissal was substantively unfair
  • The employee was to be reinstated with full back pay which amounted to eight months’ remuneration and benefits.

The remarkable aspect of this case is that the arbitrator found the dismissal to be unfair despite the fact that the employee had definitely disobeyed a lawful and reasonable instruction. The reason for this unusual finding was based on the unique circumstances of the case. These were:

  • The employee did not believe the instruction to be reasonable on the grounds that it was unsafe
  • Her opinion was based on her own view of what was dangerous practice
  • Her opinion was within the bounds of rationality
  • Her refusal to obey the Pilot’s instruction was based, not on a desire to flout authority, but rather on her professional opinion relating to safety which, according to orders, was paramount.
  • There appeared to be a personal issue influencing the dismissal.

Employers must therefore avoid basing dismissal decisions on personal attitudes. Instead, expert advice should be sought to establish whether the employee truly committed an offence.

To book for our 23 September seminar in Durban on CHANGES AND DANGERS IN LABOUR LAW please contact Ronni at [email protected] or on 084 521 7492 or 011 782 3066.

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