2020 was a year of terror at workplaces because of the physical and financial dangers posed by Covid19. Due to the fact that the roll out of the vaccine will be slow we can expect 2021 to be as terrifying as was 2020, if not even more so.

This is because Covid is spreading much more rapidly now than ever before, too many people are still resisting the necessary safety measures and the economy is still weakening very seriously. The fact that SA’s government is severely hamstrung by anti-growth agendas does inspire confidence that it will be able to rescue the economy. And, to make matters even worse,  money for state aid of businesses and workers has run out. This poses a major threat to those businesses that have managed to survive so far.

The only light at the end of the long, dark tunnel is the vaccine, but its expected slow roll out dulls that light very significantly. As a result, when the long awaited vaccine is actually made available, business managers will want to ensure that it is administered optimally. Included in that is the need to ensure that all employees are vaccinated. By December 2021, when the government expects the vaccination programme to be completed, many businesses will be in very tight economic circumstances and will be operating on a very lean staff compliment.

Should, say 10% of the staff refuse the vaccine and several of those get ill, that will increase the pressure on management and will make it more difficult to run the company effectively due to high numbers of employees being off work on sick leave or isolation leave.

In addition, the business’ clients who have not yet had the opportunity to be vaccinated will be at risk when they come into contact with the vaccine objectors.

For these reasons many employers will want to develop policies that require all employees to be vaccinated. However, the enforcement of such policies will be very problematic. This is largely because section 12(2)(b) of SA’s Constitution gives every person the right to “… security in and control over their body.” And section 15 gives everyone the freedom of religion. Thus, forcing an employee on pain of discipline to be vaccinated could, in certain circumstances, be argued to be a violation of these sections of the Constitution.

However, employers that are determined to enforce compulsory vaccination will counter this argument by quoting sections 11 and 24 of the Constitution. Section 11 gives everyone the right to life. As Covid has been a very prolific taker of lives those people who have to come in contact with the objector will be under threat of contracting the deadly disease, and their right to life would be infringed. Section 24 gives everyone the right to a safe environment; and a workplace with unvaccinated people will not be safe. The Occupational Health and Safety Act very stringently obligates employers to ensure a safe workplace. 

Due to these potentially conflicting constitutional provisions the question of whether employees can be forced to be vaccinated is highly contentious, with the bulk of advice on this issue tending towards the cautious approach.

Employers should be aware of section 36 of the Constitution which provides that, under certain circumstances, the constitutional rights of people may be limited taking into account factors such as the nature of the right and the importance of the purpose of the limitation. 

In addition, the Table of Non-Derogable Rights in the Constitution includes neither the right to freedom of religion nor to security or control over ones body. This means that it is legally possible to derogate from or to limit these rights if the reason for doing so is strong enough.

Clearly,  the challenge is to be able to convince a court that, under the circumstances, the rights of the individual to refuse the vaccine are outweighed by other constitutional rights and/or other priorities such a the provision of a safe workplace. Due to the fact that the enforcement of the taking of the Covid vaccine is such a new issue there are as yet no court findings that can provide a precedent. 

In the end, where an employer considers forcing employees to take the vaccine, it will first have to get expert advice as to whether the specific circumstances that prevail would justify such a drastic step. In order to consider taking such a step there would at least need to be a very clear and present danger of severe consequences to the workplace community of employees not being vaccinated.

For legal and employee relations reasons, it would be much more prudent for employers to get employees to agree to vaccination through the use of education and non-coercive persuasion. Where this fails and where it is viable, the employer could consider arranging for objectors to work from home or placing them in locations where risk of transmission is reduced, and also enforcing the normal safety restrictions we have come to know so well. 

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



The drafters of the Labour Relations Act of 1995 (LRA) expressly provided for a right to be heard in the statute. That is, section 188 of the LRA states that a dismissal is unfair if the employer fails to prove that it was effected in accordance with a fair procedure. The Code Of Good Practice: Dismissal in Schedule 8, which must be considered when decisions on dismissal are taken under the Act, makes it clear that, while the process can be informal, the employee should nevertheless be told what case he has to meet and be given a proper opportunity to prepare and present his response.” Important elements of this include:

  • The employee’s right to be heard emanates directly from the Constitution of South Africa and is the employee’s primary right
  • The employee must be told what case he has to meet
  • The employee must be given a proper opportunity to prepare and present his case
  • The Code Of Good Practice: Dismissal in the LRA does not require the process at which the employee is heard to be a formal one.

Many employers lose cases at the CCMA and bargaining councils because they take too seriously the provision that the disciplinary process does “not need to be a formal one”. That is, in practice it is all but impossible to comply with the other provisions of the law of dismissal without making the disciplinary hearing process a formal one.

That is, the employer is forced, in order to avoid an unfair dismissal decision, to prove that the employee’s procedural rights were complied with. Let us look at these procedural rights born out of the LRA and case law and examine just how, in practice, the employer would need to go about proving that these rights have been complied with:

  • The right to be informed as to what the charges are – Proof would be a written charge sheet, receipt for which has been signed by the  accused employee
  • The right to a proper opportunity to prepare – Proof would be a written notice of hearing, given to the employee well in advance of the hearing, receipt for which has been signed by the  accused employee well in advance of the hearing date.
  • The employee’s right to be heard and to present a defence – proof would be minutes of the hearing showing that the employee had a chance to state his case, use an interpreter and representative, bring witnesses and cross-examine evidence brought against him/her
  • The right to be fairly judged – proof would be minutes of the hearing showing that the person was even-handed and treated the accused without bias.


I admit that, in certain cases, proof of the above mentioned compliance could be provided by means other than signed notices and minutes of proceedings. Such other proof could include, for example, oral evidence from witnesses. However, between the disciplinary process and the arbitration hearing at CCMA a great many months may elapse. As a result the memories of witnesses fade and witnesses themselves disappear. Therefore, there is no effective replacement for written records. Consequently, once one introduces the use of records such as minutes, hearing notices and charge sheets one is converting the disciplinary process into a formal one. This conversion is reinforced by the need to separate the complainant role from the presiding officer role in order to eliminate bias.

In summary, the employer’s onus to prove that all the employee’s rights have been complied with makes a formal and expertly controlled hearing essential.

The officials who carry out the corrective procedure need to be highly skilled in legal procedure in order to make sure that each and every legal right of the employee is strictly adhered to. 

Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its hearings.


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 to:



Feelings of spite arise at work for a great variety of reasons such as:

  •  Resentment due to the lodging of grievances
  • Power struggles between managers
  • Racial and other prejudices
  • Scapegoating
  • Managers feeling threatened by other managers or senior staff
  • Sexual affairs
  • Favouritism and victimisation
  • Nepotism
  • Change in management and the development of factions
  • Personal clashes between people in power

Feelings of spite occur across the spectrum of private businesses, government departments, statutory bodies, academic institutions, welfare organisations and NGOs. While these smouldering, subtle conflicts affect all levels of employees they tend to become much bigger, much more intense and much more damaging when employees lodge grievances against their superiors.

For example, in the case of Kanemeyer vs Workforce Group (2005 8 BALR 824) the employee resigned and claimed constructive dismissal on the grounds that she had been disciplined for lodging a grievance against the reduction of her commission structure. She said this, together with the fact that she, as a commission earner, had been office bound, constituted victimisation. The employer argued that the employee resigned in response to having been disciplined for poor work performance. The employer however, failed to bring any evidence to rebut the employee’s claim that she was being disciplined out of spite for having lodged a grievance. The arbitrator therefore found that constructive dismissal had been proved and ordered the employer to pay the employee eight months’ remuneration in compensation.

In cases of dismissal due to spite employers might lose not only financially due to CCMA awards. I more serious consequence can be negative publicity. On the other hand the employee is in trouble because he/she is without a job. But negative consequences of private hostilities and unresolved conflicts can go even further than this. This is because such conflicts tend to permeate throughout the organisation with people taking sides and forming factions. The fallout in terms of damaged employee relations, impaired teamwork, poor performance and lost productivity can cripple an organisation. It is therefore crucial that the employer:

  • Identifies personal hostilities early
  • Accepts that it needs to be dealt with urgently
  • Assigns its best industrial relations expert to develop and implement a strategy for resolving the conflict in an orderly, fair, pragmatic and legal way.

The higher up the organisation ladder an executive goes the more likely that, where conflicts exist, the employer will try to resolve the matter quietly by putting pressure on the executive to resign. Executives and other employees often accept small or mediocre ‘settlement packages’ to avoid the discomfort of a dismissal. 

However, more recently, executives have begun to dig their heels in and are more reluctant to accept packages because jobs are harder to find. This means that employees are often negotiating bigger settlement packages especially if they have the backing of an experienced labour law negotiator.

Employers are warned that the amount of the settlement tends to increase in proportion to the extent to which the employer has breached labour law. For example, we recently negotiated, on behalf of an executive, a settlement well in excess of one year’s remuneration. And this is becoming a more and more common occurrence. 

On the other hand, we have also been able to help employers to avoid having to pay such crippling settlements by intervening before the pawpaw hits the fan. That is, where we have been called on in time we have been able to avoid rash action by the employer which then places the employer in a stronger negotiating position.

Workplace animosity is here to stay but employers and employees can, by acting timeously and sensibly, prevent it from causing irreparable harm.

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 to:



Schedule 8 of the Labour Relations Act (LRA) says that dismissal is only appropriate for those serious offences that make “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault. 

While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss. This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:

  • Mitigating circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances and others.
  • The nature of the job – For example, while sleeping on the job might be most serious for a security guard it may not merit dismissal for a back room clerk.
  • Other circumstances attached to the case. For example, if the security guard fell asleep because he had to work a double shift without a break, this could render dismissal too harsh a penalty.

In the case of Humphries & Jewel (Pty) Ltd vs FEDCRAW & others (CLL Vol. 15 No. 10, May 2006) the Labour Appeal Court found that “The relationship of trust, mutual confidence and respect which underlies the employment relationship” are at issue. “Unless there are facts that show that the employment relationship was not detrimentally affected by the employee’s misconduct, it would be unreasonable to compel either the employer or the employee to continue the relationship.”

However, the concept of ‘intolerability’ is not an objective one. What an employer might find to be intolerable might seem to be tolerable to a judge who is removed from the situation. This is possibly why a number of judges and arbitrators have refused to interfere with the dismissal sanction even when they have found it to be somewhat harsh. They have let the dismissal stand because, albeit harsh, it is still within the bounds of reasonableness. 

The parties will therefore, in order to sway the arbitrator, need to argue around the issue as to whether dismissal was necessary to protect the employer form having to continue a relationship with the employee. If the employee can show that the relationship could have continued quite satisfactorily the arbitrator might find that the dismissal was unnecessary. However, if the employer can show serious damage to the relationship caused by the misconduct then the dismissal would be likely to be seen as fair.

In the case of NUMSA obo Khumari vs Harvey Roofing Products (Pty) Ltd (CLL Vol. 15 No. 10 May 2006) the employee had requested permission to borrow a tap to repair his Geyser at home. Without receiving a response to the request the employee took the tap and was dismissed. The arbitrator found that the employee had only borrowed the tap and that this did not justify the allegation that continued employment had been rendered intolerable. The dismissal was therefore found to be unfair.

Another type of justification for dismissal is where the conduct goes against the basic sensibilities of a society. In the case of CEPPWAWU obo Evans vs Poly Oak ( 2003, 12 BALR 1324) the employee was dismissed for making a racist comment during an altercation. He was charged with using offensive language and with using inappropriate language. He claimed that he had done so in jest and had not intended to hurt the other person. The employer claimed that the employee had breached its code of conduct which was designed to improve relations in the workplace.. Despite the fact that the employee had apologised to the complainant for his remark the arbitrator upheld the dismissal.  The arbitrator noted that the Labour Appeal Court (in Crown Chickens (Pty) Ltd vs Kapp & others 2002, 11 LAC 6,12,3) had described racism in the workplace as “a plague and a cancer that must be rooted out.” The Court had found that such behaviour was “an anathema to sound industrial relations and a severe and degrading attack on the dignity of the employees in question.” The Court had also said that “ …..courts should deal with racism and racial slurs in a manner that gives expression to the legitimate feelings of outrage experienced  by reasonable people in a society against racism.”

Due largely to South Africa’s history the offence of racism in the workplace cannot be tolerated. However, the employer needs to prove that the employee did perpetrate the offence and that the act itself was serious enough to merit dismissal. Also, where the offending employee argues mitigating circumstances the employer must give consideration thereto.


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 to:



One must go far back in South African History to find a time when as many employees were losing their jobs as is happening right now. While retrenchments are at an historical high mutually agreed terminations are also on the increase. The reasons that such a package might be offered by the employer are many and varied and include, amongst others, the following:

  • The employer believes that the employee and another person in the organisation are incompatible and that a mutually agreed separation would be best 
  • The employee is suspected of misconduct but the employer cannot prove it
  • The employee has committed misconduct or has performed badly but the employer does not want the ‘hassle’ of a disciplinary hearing
  • The employer’s operational needs change 
  • The is so incapacitated as to be unable to do his/her job
  • The boss wants to create a vacancy for a family member.

Where a separation package is accepted by the employee the parties might agree that the amount of the payment will be calculated in the same or similar way to that used for calculating a retrenchment package in terms of section 41 of the Basic Conditions of Employment Act (BCEA). That is, the calculation might be based on the number of years of service of the employee.

However, this does not mean that the employee has been retrenched in terms of section 189 of the Labour Relations Act (LRA). In terms of that section, if the employer has operational requirements that might necessitate terminations, the employer is required to consult with the employees who may be affected or with their representatives. Section 189 allows the employer to retrench employees if there is a good enough basis for this and if the consultation process has been conducted properly. 

In a section 189 retrenchment the employer does not have to get the agreement of the employees or employee representatives to carry out the retrenchment. Instead, it need only comply with the provisions of the LRA. On the other hand where there is a mutually agreed separation this, by definition, involves an agreement. A section 189 retrenchment is concluded by a letter from the employer giving the employees notice of termination of employment. However, a termination by mutual consent is concluded by a legal agreement.

Employers are warned that they should not get these two types of termination confused. A termination concluded by a genuine and legally binding contract is not classed as a dismissal in the LRA. Whereas a section 189 retrenchment is a type of dismissal and may, in certain cases, be viewed as an unfair dismissal.

In a case decided by the Labour Appeal Court [ABSA Investment Management Services (Pty) Ltd vs Crowhurst 2006, 2 BLLR 107] Ms Crowhurst’s employment was terminated. She went to Labour Court claiming unfair retrenchment. ABSA lost the case and, on appeal, claimed that the employee’s employment had been terminated via mutual agreement. Ms Crowhurst claimed that she had been led to believe that her position had become redundant and that she would need to be retrenched as there were no other positions available for her. However, according to Ms Crowhurst, she discovered that there were several vacancies that would have suited her qualifications.

The employer’s version was that Ms Crowhurst had been offered two alternatives to retrenchment. Confronted with these two conflicting versions the Court had to look closely at the document that implemented the termination of Ms Crowhurst’s employment. It stated that, due to the redundancy of her position, her employment was being terminated. The letter neither bore content that indicated a mutually agreed termination nor referred to the alternatives to retrenchment that the employer had claimed had been offered to her. 

The Court decided that Ms Crowhurst had in fact been retrenched and that this dismissal was unfair. The employer was therefore required to pay Ms Crowhurst six months’ remuneration in compensation and also to pay her legal costs.

As the stakes are high when employment is terminated employers are warned:

  • To formulate their mutual termination documents to make it clear that the termination is not a dismissal
  • Record their retrenchment consultations so as to make sure that they are able to prove to the courts what really was and was not said
  • Ensure that termination strategies and processes are managed by those properly versed in labour law. 

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

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