Introduction

On 26 February 2026, the Minister of Employment and Labour (“Minister“) published, by way of the Government Gazette, a copy of the Labour Law Amendment Bill, 2025 and its Memorandum of Objects, along with the Labour Relations Amendment Bill, 2025 and its Memorandum of Objects.

The Labour Law Amendment Bill contains proposed amendments to the Basic Conditions of Employment Act^[1] (“BCEA“), the Unemployment Insurance Act^[2] (“UI Act“), the National Minimum Wage Act^[3] (“NMWA“), and the Employment Equity Act^[4] (“EEA“). The Labour Relations Amendment Bill contains proposed amendments to the Labour Relations Act^[5] (“LRA“).

Whilst both the Labour Law Amendment Bill and the Labour Relations Bill propose  several amendments to the aforesaid legislation, we highlight in this update some of those proposed amendments to the NMWA and the EEA which are likely to be of particular interest to employers.

A full copy of the Labour Law Amendment Bill, Labour Relations Amendment Bill alongside their Memorandum of Objects can be accessed, and read it full, at the Department of Employment and Labour’s website at https://www.labour.gov.za/DocumentCenter/Bills/Labour%20Relations%20Act,%202025_Labour%20Law%20Amendment%20Bill,%202025.pdf .

NMWA

Deferred Payments and minimum wage

The overall purpose of the NMWA is to provide for the minimum take-home pay which employees are entitled, and subsequently prevent the exploitation of vulnerable / low income workers. In response to the judgement Quantum Foods (Pty) Ltd v Commissioner H Jacobs N.O. (‘Quantum Foods’)^[6], the Minister proposes that deferred payments be excluded from the determination of minimum wage.

Section 5(1) of the NMWA prescribes that the calculation of minimum wage is the amount payable for ordinary hours of work excluding, among others, gratuities including bonuses, tips, and gifts. In the matter of Quantum Foods, the question was whether an annual bonus and an employer’s provident fund contribution constituted a gratuity or a contractual obligation – a determination which would impact its inclusion, or exclusion, in the calculation of minimum wage. The Labour Appeal Court concluded that, on a proper interpretation of section 5(1) of the NMWA, a contractually agreed upon annual bonus doesn’t constitute a ‘gratuity’ in terms of section 5(1)(c), nor does a provident fund contribution fall to be excluded as a gratuitous payment.^[7]

The proposed amendment seeks to change the position set out in the Quantum Foods decision by providing that deferred payments are excluded from the calculation of an employee’s minimum take-home pay.

EEA

The Labour Law Amendment Bill seeks to expand the ambit of section 10(6) (aA) of the EEA by entitling an employee to refer any claim concerning unfair discrimination on the grounds of harassment to the CCMA for arbitration where the dispute was not resolved through conciliation.

The previous entitlement under section 10(6)(aA) was limited to instances of sexual harassment, as opposed to a general ground for harassment.

Conclusion

The Labour Law Amendment Bill proposed to introduce several changes to various pieces of employment legislation such as the NMWA and the EEA. Several of these changes are likely, if implemented, to have an impact upon employers. Employer’s should, then, consider such proposed amendments in detail and whether they intend raising any objection(s) to same. Employers are reminded that any such objections must be raised by no later than 28 March 2026, in the stipulated manner.

Please contact Werksmans’ Employment practice area for any further information required.

[1] Act 75 of 1997.

[2] Act 63 of 2001.

[3] Act 9 of 2018.

[4] Act 55 of 1998.

[5] Act 6 of 1995.

[6] Quantum Foods (Pty) Ltd v Commissioner H Jacobs N.O. and Others (JA85/2022) [2023] ZALAC 27; [2024] 1 BLLR 32 (LAC); (2024) 45 ILJ 71 (LAC) (18 October 2023).

[7] Paragraphs 28 and 31 of Quantum Foods.

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Introduction

On 26 February 2026, the Minister of Employment and Labour (“Minister“) published, by way of the Government Gazette, a copy of the Labour Law Amendment Bill, 2025 and its Memorandum of Objects, along with the Labour Relations Amendment Bill, 2025 and its Memorandum of Objects.

The Labour Law Amendment Bill contains proposed amendments to the Basic Conditions of Employment Act^[1] (“BCEA“), the Unemployment Insurance Act^[2] (“UI Act“), the National Minimum Wage Act^[3] (“NMWA“), and the Employment Equity Act^[4] (“EEA“). The Labour Relations Amendment Bill contains proposed amendments to the Labour Relations Act^[5] (“LRA“).

Whilst both the Labour Law Amendment Bill and the Labour Relations Bill propose  several amendments to the aforesaid legislation, we highlight in this update some of those proposed amendments to the BCEA and UI Act which are likely to be of particular interest to employers.

A full copy of the Labour Law Amendment Bill, Labour Relations Amendment Bill alongside their Memorandum of Objects can be accessed, and read it full, at the Department of Employment and Labour’s website at https://www.labour.gov.za/DocumentCenter/Bills/Labour%20Relations%20Act,%202025_Labour%20Law%20Amendment%20Bill,%202025.pdf .

BCEA

Employees required to be available for work

The amendment seeks to introduce provisions regulating the minimum conditions for employees required to be available for work. This category of employment is sometimes referred to as “on call contracts”, “zero hour contracts”, “min-max contracts”, “flexitime contracts”, and “if and when contracts”. It applies to an employee who is required to “(a) work only when the employer makes work available to the employee and (b) be available to accept work that the employer makes available.”

The employee must be provided with written particulars of employment, which must stipulate their maximum hours of work for a specific period, the period in which they must be available to work, and the notice period required for the employee to report to work and for the cancellation of work. Should the employer fail to provide the employee with sufficient notice of cancellation, the employer will be liable to remunerate the employee for the cancelled hours of work.

An employer may not prevent or restrict an employee, who has fulfilled their obligations to be available for work to that employer from working for another individual, unless the employer has genuine operational reasons for such restrictions and those reasons are recorded in the employee’s written particulars of employment. The Labour Relations Amendment Bill provides examples of what operational reasons would include.

Employees who are employed on this basis must be treated on the whole no less favourably to employees who perform similar work but to whom this provision would not apply, unless there is a justifiable reason for such different treatment.

The memorandum indicates that the above provision only applies to employees who earn below the threshold set in terms of section 6(3) of the BCEA.^[6] In addition, the provision does not apply to an employer who has less than 10 employees. These provisions are aimed at providing protection to “on call” workers, whilst simultaneously providing for an employers need for flexibility when faced with a variable demand for work.

Parental leave

In line with the Constitution of the Republic of South Africa and the recent landmark Constitutional Court judgement, Van Wyk and Others v Minister of Employment and Labour^[7], the Labour Law Amendment Bill proposes the insertion of extensive provisions regulating parental leave in the BCEA.

Employees entitled to parental leave include, parents of a newborn child, adoptive parents of child who is six years old or younger, as well as a commissioning parent.  The age for adopted children has been increased from the current statutory provision, which entitles adoptive parents to parental leave where the adopted child is two years old or younger. Additionally, a commissioning parent denotes a parent of a child who is born as result of a surrogate agreement. The provisions relating to parental leave also finds application for an employee who has suffered a miscarriage or bears a still-born child.

An employee is entitled to four consecutive months of parental leave if the employee is a single parent or if they are the only employed party in the parental relationship. Alternatively, if both parties to the parental relationship are employed, then they are collectively entitled to four months and ten days parental leave.

Commencement of parental leave and notice of leave

The provisions regulate the commencement of parental leave for a female employee expecting the birth of a child, and also prevents a female employee from returning to work within 6 weeks after giving birth to the child, save for where a medical practitioner or midwife has certified to the contrary.

The employee is required to notify their employer, in writing, of the date on which they intend to commence parental leave and the date of their return to work. Such notification must be given four weeks before the intended commencement of leave, or if this is not reasonably practicable, then the employee must notify their employer as soon as reasonably practicable. If the employees in a parental relationship have different employers, then both employees must provide their employer with the abovenamed notice, as well as submit any agreement  concerning parental leave concluded in terms of section 25B to their employers which sets out the respective periods of parental leave for both employees.

Exercise of right to parental leave if two parents are employees

Section 25B of the proposed amendment  provides that if both parents are employees, then they must submit the abovenamed notice and conclude an agreement to be submitted to both their employers.

If an agreement cannot be concluded, then the employee who has given birth may elect to take four months parental leave, and the other parent is entitled to 10 days parental leave. Alternatively, the employee who has given birth can elect to take less than four months parental leave, which would then entitle the other parent to take the portion of leave remaining, four months and ten days in aggregate for them both.

If the parties to a parental relationship who are entitled to parental leave as result of a surrogate agreement or adoption cannot agree on the apportionment of leave, then the leave will be apportioned in a manner which is as close to equal as possible.

Increased Severance Pay

There is a proposal to increase the entitlement to severance pay from the amount presently provided for in the BCEA, being the equivalent of one week’s remuneration for every completed year of service. An employer will be required to pay an employee severance pay which is equal to at least two week’s remuneration for every completed year of continuous service with that employer. This provision does not apply retrospectively. The Bill provides that “the entitlement to severance pay equal two week’s remuneration only applies to a completed year of service with that employer which commenced after the commencement of the Amendment Act“.^[8]

It should be noted section 41(4) of the BCEA still remains in effect. This provision stipulates that an employee is not entitled to severance pay where that employee has unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer.^[9]

Employer’s contribution to a benefit fund

Should an employer fail to pay a contribution to a benefit fund, such as pension benefits, this failure will be treated the same as an employer’s failure to pay any amount owing to an employee in terms of the BCEA, except that in any compliance order, Court order or arbitration award the employer must be directed to make the outstanding payment to the benefit fund concerned. The Labour Court, CCMA, and Bargaining Council, to which a dispute has been referred due to an employer’s failure to pay contributions under the Pension Funds Act 24 of 1956, will be empowered to direct the employer to pay the outstanding amount to the Fund as well as the interest which has accrued on the outstanding amount.

Consolidated disputes

Clause 12 of the Labour Law Amendment Bill proposes to consolidate disputes in Labour Court proceedings and arbitration. Where an employee institutes proceedings for an unfair dismissal in respect of any claim under employment law, the proposed amendment provides that the Labour Court or the arbitrator hearing the matter is entitled to also determine any claim for an amount owing to the employee in terms of the BCEA or NMWA, This allows for certain disputes under the BCEA/NMWA and employment law to be jointly adjudicated.

UI ACT

Parental benefits

While the BCEA is silent on the payment of parental benefits, the UI Act provides the relevant regulatory framework. The UI Act provides that parental benefits must be paid at 66% of the earnings of the beneficiary at the date of application.

Further to the above, a ‘contributor’ will be entitled to receive parental benefits if  they are pregnant, in a parental relationship with a person who gives birth to a child (irrespective of whether the mother is a contributor), an adoptive parent/prospective adoptive parent, or a commissioning parent.

The amendment further regulates the period for which such benefits can be claimed as well as the application for parental benefits and the payment thereof.

Conclusion

The Labour Law Amendment Bill proposed to introduce several changes to various pieces of employment legislation. Several of these changes are likely, if implemented, to have an impact upon employers. Employer’s should, then, consider such proposed amendments in detail and whether they intend raising any objection(s) to same. Employers are reminded that any such objections must be raised by no later than 28 March 2026, in the stipulated manner.

Please contact Werksmans’ Employment practice area for any further information required.

[1] Act 75 of 1997.

[2] Act 63 of 2001.

[3] Act 9 of 2018.

[4] Act 55 of 1998.

[5] Act 6 of 1995.

[6] The current threshold is R261 748,45 per annum.

[7] [2025] ZACC 20.

[8] Section 16 of the Labour Law Amendment Bill, 2025.

[9] Section 41(1) of the BCEA.

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Introduction

On 26 February 2026, the Minister of Employment and Labour (“Minister“) published, by way of the Government Gazette, a copy of the Labour Law Amendment Bill, 2025 and its Memorandum of Objects, along with the Labour Relations Amendment Bill, 2025 and its Memorandum of Objects.

The Labour Law Amendment Bill contains proposed amendments to the Basic Conditions of Employment Act^[1] (“BCEA“), the Unemployment Insurance Act^[2] (“UI Act“), the National Minimum Wage Act^[3] (“NMWA“), and the Employment Equity Act^[4] (“EEA“). The Labour Relations Amendment Bill contains proposed amendments to the Labour Relations Act^[5] (“LRA“).

Whilst both the Labour Law Amendment Bill and the Labour Relations Bill propose several amendments to the aforesaid legislation, we highlight in this update some of those proposed amendments to the Labour Relations Act which are likely to be of particular interest to employers.

A full copy of the Labour Law Amendment Bill, Labour Relations Amendment Bill alongside their Memorandum of Objects can be accessed, and read it full, at the Department of Employment and Labour’s website at https://www.labour.gov.za/DocumentCenter/Bills/Labour%20Relations%20Act,%202025_Labour%20Law%20Amendment%20Bill,%202025.pdf .

Labour Relations Amendment Bill

Collective agreements

The Labour Relations Amendment Bill introduces new provisions relating to the application of collective agreements. Whilst such agreements could previously be extended to non-parties in terms of section 32 of the LRA, this is no longer the case for certain new employers. Collective agreements may not bind new businesses who employs less than 50 employees, and their employees.

An employer will be regarded as a new business if they have been in operation for less than two years. This does not include instances where a business is formed by the dissolution or division of an existing business, nor does it include a new employer as per section 197(1)(b) of the LRA.^[6] Section 197 regulates the transfer of contract of employment, subsection (1)(b) specifically denotes the transfer of business from one employer to another employer (ie the new employer).

General powers of the CCMA

Sections 115(1)(a) and (b) of the LRA provides that the CCMA must “(a) attempt to resolve, through conciliation, any dispute referred to it in terms of this Act; (b) if a dispute that has been referred to it remains unresolved after conciliation, arbitrate the dispute if…this Act requires arbitration and any party to the dispute has requested that the dispute be resolved through arbitration…”. The Labour Relations Amendment Bill expands the general powers of the CCMA by clarifying that the CCMA has the power to resolve disputes, through conciliation and arbitration, where it is empowered to do so by any employment law, as opposed to the CCMA’s authorisation being found in the LRA alone. ‘Employment law’, as per the  LRA, now includes within its purview the NMWA, the BCEA and the Employment Services Act^[7]. This expands the ambit within which the CCMA may operate.

Additionally, the amendment makes provision for the CCMA to assist low-earning employees in enforcing arbitration awards in terms of any employment law.^[8] This includes instructing and paying the fees of a Sheriff. However, this does not detract from the fact that the employee remains responsible, in law, for the enforcement of the arbitration award.

Postponement

Additionally, the Commissioner will be empowered to impose a prescribed fee on a party who requests a postponement of an arbitration hearing, where the Commissioner regards this request as being frivolous, vexatious, or one which could have been reasonably avoided.

High-income earning employees

Furthermore, the amendment introduces a cap on the compensation which can be awarded to an employee. Where an employee’s dismissal is found to be either substantively or procedurally unfair, the compensation awarded may not exceed the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration at the date of dismissal, to a maximum amount prescribed by the Minister. The same applies to the compensation awarded to an employee in respect of an unfair labour practice, provided that the prescribed amount is not applicable to an unfair labour practice as set out in section 186(2)(d) of the LRA (ie an unfair act/omission between an employer and employee involving an occupational detriment). The current proposed income threshold is R 1,800,000.00 per annum. Therefore, should an employee earn above this threshold, any relevant claim for compensation will be capped at the designated threshold. This amendment was premised on policy considerations which take into account economic vulnerability when determining apt compensation.

Additionally, a high-paying employee earning above the stated income threshold who is dismissed will only be entitled to claim reinstatement as a remedy if their dismissal constitutes an automatically unfair dismissal. This restriction is stated to be congruent with international standards which differentiate the treatment of higher-paid employees in respect of the remedies available to them.

Duplication of claims

The Labour Relations Amendment Bill further aims to prevent the duplication of claims. Should an employee  refer a dispute in respect of the unlawfulness of a dismissal, this provision will prohibit them from also bringing a claim, based on the same facts, in respect of the unfairness of the dismissal and vice versa. This proposed amendment emphasises that an employee is required to make an election when challenging a dismissal, which will ultimately ease the burden of disputes in the CCMA and the Labour Court.

Unfair dismissals and new employees

The proposed amendment posits that the relevant protections provided to employees in terms section 188 of the LRA (i.e., the protection against unfair dismissals), do not apply to new employees within their first three months of employment or during a probation period if that period is longer than the former, provided that the probation period is provided for in the contract of employment is reasonable and operationally justifiable.

Conclusion

The Labour Relations Amendment Bill proposed to introduce several changes to the Labour Relations Act. Several of these changes are likely, if implemented, to have an impact upon employers. Employer’s should, then, consider such proposed amendments in detail and whether they intend raising any objection(s) to same. Employers are reminded that any such objections must be raised by no later than 28 March 2026, in the stipulated manner.

Please contact Werksmans’ Employment practice area for any further information required.

[1] Act 75 of 1997.

[2] Act 63 of 2001.

[3] Act 9 of 2018.

[4] Act 55 of 1998.

[5] Act 6 of 1995.

[6] Section 197(1)(b) of the LRA.

[7] Act 4 of 2014.

[8] Low earning employees denote those employees earning below the threshold as designated by the Minister in section 6(3) of the BCEA.

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Restraints of trade remain one of the most frequently litigated issues in South African employment law. The tension is familiar: employees are entitled to pursue their chosen occupation, but employers are equally entitled to protect the commercial interests they have spent years building.

A recent cluster of decisions – Backsports (Pty) Ltd v Motlhanke & another (2026) 47 ILJ 529 (LAC), Atlas 360 Commercial Vehicle Services (Pty) Ltd v De Witt & another (2026) 47 ILJ 561 (LC), HR & Skills Market v Strydom & another (2026) 47 ILJ 590 (LC) and Corporate Business Solutions v Kenton & another (2026) 47 ILJ 642 (GJ) – provides a useful reminder that courts remain prepared to enforce restraint agreements where genuine employer interests are at stake.  Taken together, the cases reinforce a simple principle: employees are free to leave their employer, but they are not free to leave with the employer’s competitive advantage.

In Backsports, the Labour Appeal Court dealt with a familiar argument. The employee had signed a restraint preventing him from soliciting the employer’s customers and poaching its staff. During his employment he admitted to misconduct that included attempting to do exactly that. He was dismissed and the employer sought to enforce the restraint.  The employee argued that because he had been dismissed, the restraint should not apply. The LAC rejected the argument. The contract expressly provided that the restraint would operate from the date of termination regardless of the reason for termination, and there was no evidence that the dismissal had been engineered simply to trigger the restraint. The clause therefore remained enforceable.
The decision is an important reminder that dismissal does not automatically neutralise a restraint. Where the agreement is clearly drafted and the employer acts in good faith, the restraint will generally operate according to its terms.

The Labour Court adopted a similarly pragmatic approach in Atlas 360. In that matter, a sales executive resigned to join a competitor after emailing herself customer lists and confidential business information. She had extensive knowledge of the employer’s customers, pricing and commercial strategies.  The court had little difficulty finding that the employer possessed protectable interests in the form of confidential information and customer connections. The risk that the information could be used by a competitor was both obvious and immediate. The restraint was therefore enforced.  As restraint cases go, Atlas 360 illustrates a point that courts routinely emphasise: copying customer lists before joining a competitor is rarely a strategically good idea.

HR & Skills Market v Strydom highlights another principle that employers sometimes overlook – employees may not compete with their employer while still employed. In that case, an HR consultant operated a competing business while working for the employer and serviced clients using confidential pricing structures and client information.
The court held that this conduct breached both the restraint provisions and the employee’s common‑law duty of loyalty. The employer had a clear protectable interest in its client relationships and confidential information, and the risk of misuse was real rather than speculative.

Finally, the High Court decision in Corporate Business Solutions v Kenton dealt with the misuse of employer information after termination of employment. The employee had access to product information, customer details, contract information and other commercially sensitive material. After leaving, he established a competing business and began soliciting the employer’s clients. The court found that the employer’s confidential information and customer relationships constituted protectable interests. The solicitation of clients in competition with the employer amounted to a clear breach of the restraint, and enforcement followed.

Viewed together, these decisions reflect a consistent judicial approach.  First, restraints remain enforceable where they protect legitimate interests such as confidential information, trade secrets and customer connections.  Second, the conduct of the employee often becomes decisive. Soliciting clients, copying confidential data, operating a competing business during employment or attempting to recruit colleagues will invariably strengthen the employer’s case.  Third, careful drafting matters. In Backsports and Corporate Business Solutions, the fact that the restraint applied regardless of the reason for termination proved significant. Precision in drafting can close off many of the arguments employees routinely raise.   Fourth, courts will continue to balance the employer’s interests against the employee’s right to earn a livelihood. But where the employee can still work in the industry without unfairly exploiting the former employer’s confidential information or customer relationships, enforcement will generally follow.

For employers, the lessons are straightforward. Restraints should be carefully drafted, directed at identifiable commercial interests and applied consistently. Where breaches arise, swift enforcement remains essential. For employees, the lesson is simpler still. You are free to take the job (as long as it doesn’t compete).  Just don’t take the clients.

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On 26 February 2026, the Minister of Employment and Labour, Nomakhosazana Meth MP, published by way of Government Gazette a copy of the Labour Law Amendment Bill, 2025 (“Labour Law Amendment Bill“) and Memorandum of Objects well as the Labour Relations Amendment Bill, 2025 (“Labour Relations Amendment Bill”) and Memorandum of Objects, for public comment.

The Labour Law Amendment Bill proposes to amend the Basic Conditions of Employment Act 75 of 1997 (“BCEA“), the Employment Equity Act 55 of 1998 (“EEA“), the National Minimum Wage Act 9 of 2018 (“NMWA“) and the Unemployment Insurance Act 63 of 2001 (“UI Act“).

In brief, the amendments to –

• the BCEA pertain to, among others, the provision of minimum conditions of employment to employees who are required to be available to work, amendments to parental leave provisions to render it consistent with the Constitution of the Republic of South Africa, to specify the severance pay employees are entitled to, to specify the forums within which to claim severance and / or unpaid contributions to benefit funds, to specify the powers of the Commission for Conciliation, Mediation and Arbitration (“CCMA“) to enforce compliance orders, to clarify the powers of Bargaining Council’s to arbitrate specific disputes; and to empower the Minister to make regulations concerning the use of fines by the CCMA;

• the UI Act pertain to the provision of parental leave benefits, so as to be consistent with the BCEA and the Constitution of the Republic of South Africa;

• the EEA pertain to, among others, the substitution of a definition of employment law, to enable employees to refer any claim concerning harassment to the CCMA; to specify the capacity of Bargaining Councils to resolve disputes arising under the EEA; and

• the NMWA pertain to, among others, the requirement that representatives on the Commission have the appropriate knowledge and skill and experience to fulfil their duties etc.

The Labour Relations Amendment Bill proposes to amend the Labour Relations Act 66 of 1995 (“LRA“). In brief, the amendments include further regulation to ballots for closed shop agreements, to limit the application of Bargaining Council agreements to certain new businesses, to regulate the extension of funding agreements for Bargaining Councils, to specify financial reporting standards for trade unions, employer’s organisations and Bargaining Councils, to amend the functioning of the essential services committee and resolution of disputes in essential services, to specify the duration of notices concerning socio-economic protection action, to permit the Minister to regulate the retention of ballot records, to provide for guidelines for the registrar or labour relations in respect of cancelling the registration of trade unions or employer’s organisations, to introduce reporting requirements for federations of trade union and employer’s organisations, to amend the functions and rule making powers of the CCMA, to amend the powers and functions of the Labour Court and Labour Appeal Court; to further specify the requirements of fair procedure in case of dismissals for misconduct or incapacity, to amend the procedure for holding inquiries by arbitrators, to amend the process of facilitation for large-scale operational requirements dismissals, to permit the CCMA to arbitration certain disputes about discrimination, to limit the remedies available to employees earning above an earning threshold in unfair dismissal and unfair labour practice claims and to empower the Minister to set a threshold, to prevent the duplication of claims, to provide for a limitation of liability of the CCMA and other entities performing statutory functions under employment laws, to provide for the extension of provisions concerning freedom of association and collective bargaining to a broader category of employees etc.

Any comments (for the Labour Law Amendment Bill and/or Labour Relations Amendment Bill) should be addressed, via email, to Hlukani.Mabunda@labour.gov.za and / or Kopano. Kgatlhanye@labour.gov.za . Comments need to reach the Department of Employment and Labour by no later than 30 days from date of publication of the notice in the Government Gazette (i.e., 28 March 2026). Late submissions may not be considered.

To unpack this further please contact the Werksmans Employment Practice.

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by Andre van Heerden – Director and Mikayla Ehrenreich – Candidate Attorney

Introduction

Employers should guard against unduly delaying disciplinary proceedings as an excessive delay could render the process unfair. The CCMA, in Lethoba and Rand Water (2025)[1], barred the employer from continuing disciplinary action due to an unreasonable delay between the service of the initial charge sheet on the employee and the issuing of additional charges.

Facts

The employee was suspended on 8 August 2023. The employer served the employee with the formal notice of the charges on 19 December 2023, and then supplemented the charges against the employee on 25 July 2025 – some 19 months later. The employer attributed the delay to, among other reasons, operational constraints, specifically the absence of their employee relations consultant.

The matter was then referred to the CCMA in terms of section 188A of the Labour Relations Act (‘LRA’). Section 188A permits an employer to request a council, an accredited agency, or the CCMA to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee, provided that the employee has consented or the request has been made in accordance with a collective agreement. The arbitrator, under the auspices of the CCMA, then effectively conducts the disciplinary hearing.

The pertinent questions before the CCMA were whether the excessive delay constituted a waiver of the employer’s right to discipline its employee, or whether the delay rendered the disciplinary process procedurally unfair.

CCMA Findings and Analysis

In relying on previous case law, the CCMA emphasized that a waiver “requires a clear, and intentional abandonment of rights”, and that a mere delay cannot constitute a waiver. Rather, the impact of the delay must be determined using fairness as the benchmark.

The CCMA referred to the finding in Mapyane v SA Police Services and Others[2], namely that any inexplicable delay or inaction by the employer undermines fairness and is contrary to the constitutional standard of prompt justice. Furthermore, the court in Mapyane emphasised that when an employee explicitly demands a swift resolution to the matter, the employer’s failure to act promptly significantly undermines the fairness of the disciplinary process. Mapyane involved an ‘ordinary’ disciplinary hearing and not a hearing in terms of section 188A of the LRA. However the principles advanced remain applicable, that is, that an unjustified and excessive delay violates the right to prompt justice. The court in Mapyane, found that whilst the dismissal was substantively fair, the inordinate delay rendered it procedurally unfair.

In assessing whether a delay is contrary to the standards of fairness and prompt justice, the CCMA also had regard to the factors identified in Stokwe v Members of the Executive Council, Department of Education, Eastern Cape (2019) (‘Stokwe’)[3]. The factors to be considered include the length of the delay, the reasons for the delay, the degree of action taken by the employee to assert their right to prompt justice, any prejudice the employee suffered as result of the delay, and the nature of the alleged misconduct. The application of these factors and the question of whether a delay would adversely impact the fairness of a disciplinary process is a question of fact and must be determined on a case to case basis.

In applying the aforementioned principles in the context of section 188A, the CCMA concluded that the 19 month period was an excessive delay, which triggered the presumption of unfairness. Citing general operational constraints, as argued by the employer, was insufficient in negating this presumption. The CCMA emphasized that employers are required to account, in detail, for any reason for their inaction during disciplinary proceedings to rebut an allegation of unfairness. This is especially so when the employee demonstrates reasonable attempt(s) to assert their right to prompt justice. Furthermore, the prejudice endured by the employee as result of the delay is a factor which could tip the scale in favour of the employee.  Prejudice in this context amounts to, inter alia, being subjected to a prolonged state of uncertainty, which ultimately impacts an employee’s ability to recall relevant events surrounding the conduct in question.

The CCMA concluded that the employer’s excessive delay in instituting disciplinary proceedings undermined the right to prompt justice and rendered the process unfair. The arbitrator emphasized that when considering a section 188A referral, the CCMA has the authority, under section 138(9) of the LRA, to make a suitable award. This includes the discretionary power to terminate proceedings if delays or any other unfairness renders the continuation of the matter unjust or contrary to the purpose of the empowering statute. The employer was subsequently prevented from proceeding with the disciplinary action.

Conclusion

An employer’s delay in promptly taking disciplinary action may be sufficient to render the process unfair. Employers should be cognizant of an employee’s right to prompt justice. Any delay in proceedings will be measured against the relevant principles cited in, among others, Stokwe and Mapyane to determine whether the delay is unfair or not.

[1] (2025) 46 ILJ 2771 (CCMA).

[2] (2024) 45 ILJ 564 (LC).

[3] (2019) 40 ILJ 773 (CC).

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The Labour Court’s judgment in Modika v Industrial Development Corporation of South Africa and another serves as an important corrective to a growing misconception in disciplinary practice: that section 188A of the Labour Relations Act provides a general mechanism for employees to derail or defer internal disciplinary proceedings. It does not. The Court makes it clear that section 188A(11) is a targeted, whistleblower‑specific intervention, not a procedural escape hatch available in every contested disciplinary enquiry.

Section 188A(11) exists for a very particular reason. It was introduced to address the unique risk faced by employees who allege that disciplinary action is being taken in retaliation for having made a protected disclosure under the Protected Disclosures Act. In that limited context, the legislature elected to substitute the employer’s internal disciplinary process with an independent, pre‑dismissal arbitration conducted under the auspices of the CCMA. The purpose is not to suspend discipline, but to remove it from the control of the employer where retaliation is plausibly alleged.

The Court was careful to emphasise that this mechanism is triggered only where an employee alleges, in good faith, that the holding of a disciplinary enquiry itself constitutes an occupational detriment arising from a protected disclosure. Absent that allegation, section 188A(11) has no application. Ordinary disciplinary proceedings remain precisely that: ordinary. Employers are not required to justify internal discipline merely because an employee objects to it, raises grievances, or disputes the charges.

This distinction matters. The judgment reinforces that section 188A(11) is not concerned with fairness in the abstract, nor with whether an employer has acted reasonably in instituting discipline. Its reach is confined to alleged whistleblowers and the specific mischief the provision was enacted to cure. Attempts to generalise it beyond that context are misplaced.

Crucially, the Court also dispelled the notion that invoking section 188A(11) immunises an employee from discipline. It does not. What changes is the forum, not the substance. If the CCMA arbitrator accepts jurisdiction, the arbitrator proceeds to determine the misconduct charges on their merits and, if proven, to impose an appropriate sanction. Dismissal remains firmly on the table. Indeed, where dismissal follows from a section 188A arbitration, section 188A(12) expressly provides that the outcome cannot later be characterised as an occupational detriment. Finality is built into the scheme.

Equally important is what the arbitrator does not decide. A section 188A(11) arbitrator does not adjudicate a protected disclosure dispute, nor does the arbitrator rule on whether the employer acted unlawfully or unfairly by instituting discipline. The protected disclosure allegation serves only as the jurisdictional gateway. Once through that gate, the enquiry becomes a conventional misconduct hearing, conducted independently.

The Court also confirmed that section 188A(11) does not permit parallel processes. Where the provision is properly invoked, internal disciplinary proceedings must pause pending the arbitrator’s jurisdictional ruling. This is not a reflection of distrust in internal processes generally, but a recognition that whistleblower cases are different by design.

Perhaps most telling is the Court’s implicit warning against overuse. Section 188A(11) is not a blunt instrument for delay. It is a narrow statutory remedy, with defined consequences. Employees who invoke it unsuccessfully simply return to internal discipline. Those who invoke it successfully face an expedited, tightly managed arbitration that may well end their employment with no further recourse.

For employers, the lesson is straightforward. Section 188A(11) does not undermine disciplinary authority. It confines itself to alleged whistleblowers, and even then, it substitutes rather than suspends accountability. Properly understood, it is not an obstacle to discipline, but a reminder that retaliation and accountability are not the same thing – and the law treats them differently for good reason.

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The Labour Appeal Court’s decision in NUMSA obo Members v Macsteel Service Centres South Africa (Pty) Ltd offers a useful reminder that while labour law remains a fairness-driven system, it is not one that excuses indifference to statutory time limits. For employers, the judgment reinforces the continued relevance of procedural discipline and the importance of finality in large-scale dismissal disputes.

The case arose from the dismissal of more than 100 employees following an unprotected strike. When the union failed to refer its automatically unfair dismissal claim to the Labour Court within the prescribed 90-day period, it sought condonation. The Labour Court refused. On appeal, the majority of the Labour Appeal Court overturned that decision, finding that the court a quo had misdirected itself in its approach to condonation.

At first glance, the outcome may appear unfavourable to employers. However, a closer reading reveals several important employer-friendly principles. The judgment confirms that condonation is never automatic. The LRA permits late referrals only on “good cause shown”, and the onus remains firmly on the defaulting party to provide a proper explanation. While the Court accepted that explanations need not account for every hour of delay, it emphasised that they must cover the period meaningfully and candidly. Employers should take comfort in the Court’s repeated endorsement of the principle that litigation under the LRA is subject to strict scrutiny, precisely because delay undermines the statutory objective of speedy dispute resolution.

The Court clarified that the 90-day time limit in section 191 of the LRA is not to be conflated with the more flexible “unreasonable delay” standard under PAJA. This distinction matters for employers. The LRA creates defined windows for action, and while those windows may be extended by a court, they do not lose their force simply because a party later becomes ready to litigate. Compliance remains the starting point, not an optional aspiration.

Perhaps most importantly, the judgment reinforces that condonation requires a holistic assessment. Delay, explanation, prospects of success, prejudice and the interests of justice must be weighed together. For employers, this means that procedural objections remain a powerful defence — particularly where delay is substantial, explanations are weak, or prejudice is real. The dissenting judgment is especially instructive in this regard, emphasising that unexplained shifts in legal strategy and failures to act timeously can, on their own, justify refusal of condonation.

The case also underscores the evidentiary advantage employers gain from clear contemporaneous records. The employer’s consistent position — that the dismissals arose from participation in an unprotected strike — was repeatedly documented through correspondence, strike notices, interdict proceedings and referrals. This consistency proved central to challenging the credibility of the union’s later reformulation of the dispute. Employers who document decisional pathways carefully are better positioned to resist attempts to recast disputes after the fact.

Finally, the judgment highlights that while courts remain alive to the prejudice suffered by dismissed employees, employer prejudice is not treated lightly. The right to finality, certainty and the orderly management of litigation remains a legitimate interest. Employers are not required to litigate indefinitely simply because a dispute is large or emotive.

The broader lesson is a familiar but often contested one. Labour litigation rewards diligence. Employers who act promptly, keep proper records and enforce procedural rules are not being technical; they are aligning themselves with the statutory design of the LRA. This decision confirms that, even in mass dismissal cases, procedural discipline remains a cornerstone of fairness — not its enemy.

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Retrenchment is often described as a ‘no-fault’ dismissal, yet it remains one of the most litigious areas of South African labour law. A recurring point of contention is whether an employer has truly entered consultations with an open mind or is merely performing a ‘tick-box’ exercise to reach a predetermined result. In Tsogo Sun Casinos (Proprietary) Limited t/a Emnotweni Casino v SACCAWU obo Mavuso and Others,[1] the Labour Appeal Court (“LAC”) clarifies the employer’s obligations under Section 189 of the Labour Relations Act 66 of 1995, as amended, (“LRA”), particularly regarding the hierarchy of consulting parties and the rejection of alternative proposals.

The Issue

The primary issue before the LAC was whether the dismissal of three crèche attendants following a restructuring process was substantively and procedurally fair. Specifically, the court had to determine:

1. Whether the employer was required to consult with a trade union (SACCAWU) despite the absence of a recognition agreement;

1. Whether the consultation process was a fait accompli because the employer rejected all employee-proposed alternatives; and
2. The appropriateness of reinstatement as a remedy when a crèche facility has been permanently closed and the functions outsourced.

The Facts

The individual employees were employed as crèche attendants at the Emnotweni Casino. Following the declaration of the national lockdown in March 2020, the crèche was closed and the employees were placed on layoff. While the casino reopened in July 2020, the crèche remained closed for 18 months.

In September 2021, the appellant issued a Section 189(3) notice, proposing the redundancy of the crèche positions as it was unlikely the facility would reopen in the foreseeable future. Consultations were held over three months, during which the employees proposed various alternatives, including:

• Redeployment to cleaning or reception duties.
• Implementation of a rotational shift system.
• Outsourcing the crèche to the employees themselves.

The employer rejected these proposals as unfeasible given the pandemic’s impact and the uncertainty of the crèche’s future. One employee accepted a voluntary severance package (VSP), while the remaining three were dismissed in November 2021. The Labour Court initially found the dismissals unfair, citing a ‘tick-box approach’ and a failure to consult the employees’ trade union, ordering reinstatement with full backpay.

The Law

The LAC considered several key provisions of the LRA:

Regarding Section 189(1), the LAC held that it establishes a hierarchy of consulting parties. If no collective agreement or workplace forum exists, the employer must consult a registered trade union whose members are likely to be affected. Only in the absence of such a union may the employer consult directly with the employees.

Regarding Section 189(2), the LAC explained that it requires parties to engage in a ‘meaningful joint consensus-seeking process’ regarding alternatives to dismissal, selection criteria, and severance pay.

Regarding Section 193, the LAC noted that reinstatement may be inappropriate if it is not reasonably practicable.

The court also applied the principle from Solidarity obo Members v Barloworld Equipment,[2] which holds that an employer must keep an open mind and provide reasons for rejecting representations in order for the consultations to be considered meaningful.

The Application

The LAC disagreed with the Labour Court’s finding that the process was a sham. The court noted that a consultation is not a fait accompli simply because an employer provides immediate answers to proposals based on an established business rationale. The rejection of alternatives, such as continued layoff or a shift system for a non-operational facility, was deemed commercially rational.

Regarding the union, the court clarified the ‘hierarchy’ of consultation as follows –

The court found no evidence that the employer was aware of the first two employees’ trade union membership at the start of the process. Their vague requests to consult ‘someone’ did not trigger a legal obligation for the employer to divine SACCAWU’s involvement.

However, for the third employee, the court found that the employer was aware of her history with the trade union. During the process, she explicitly mentioned consulting a SACCAWU official regarding the issue of a voluntary severance package. The LAC found that as of November 2021, the employer should have engaged SACCAWU specifically, for her.

However, the court also criticised the trade union’s inaction. Despite being aware of the process, the trade union took no steps to intervene or assert its right to consult on their member’s behalf.

Conclusion

The LAC upheld the appeal in part. It found the dismissals of the first two employees to be both substantively and procedurally fair. In the case of the third employee, the dismissal was substantively fair but procedurally unfair due to the minor failure to involve the trade union once her membership of same became clear.

The court set aside the reinstatement order noting it was impracticable since the crèche no longer existed in the company structure and instead awarded the third employee three months’ compensation.

Key takeaway for employers

While you are not compelled to accept every employee proposal, you must demonstrate a genuine consideration of alternatives. Furthermore, while the burden of consultation is shared, ignoring even late-stage references to trade union representation can result in a finding of procedural unfairness.

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[1]           JA106/24) [2025] ZALAC 64 (27 November 2025)

[2]          Solidarity obo Members v Barloworld Equipment Southern Africa and others 2023 (1) BCLR 51 (CC) at para 46.

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The Labour Court’s judgment in Man Mining Technical Services (Pty) Ltd v Eagle Creek Investments 278 (Pty) Ltd and others is a timely and employer-affirming reminder of what section 197 of the Labour Relations Act is – and, just as importantly, what it is not. For employers operating in outsourced, contracting or service-based environments, the decision draws a clear line between employee protection and commercial entitlement.

The case arose after a mining services contractor lost its service level agreement at a mine and was replaced by a new contractor. The incoming contractor concluded employment contracts with 151 employees previously employed by the outgoing service provider. The outgoing employer accepted that section 197 did not apply, but nevertheless approached the Labour Court on an urgent basis, seeking to set aside the employees’ new contracts and to have them declared its employees. The claim was framed in the language of section 197, but its substance was plainly commercial.  The Court had little difficulty dismissing the application. Its reasoning offers several practical lessons for employers.

First, the judgment re-anchors section 197 firmly in its protective purpose. Section 197 exists to safeguard employees when a business transfers as a going concern. It does not confer proprietary rights on employers to retain a workforce, nor does it entitle a service provider to veto employment contracts concluded between employees and a third party. Employers should take comfort from the Court’s clear rejection of any attempt to weaponise section 197 as a commercial restraint.

Secondly, the Court confirmed that standing matters. An employer cannot invoke labour-law remedies to vindicate its own commercial interests. Where employees have chosen to accept employment with a new employer and do not themselves challenge that relationship, a former employer has no locus standi to do so on their behalf. The fact that the workforce may be integral to the outgoing contractor’s business does not convert a contractual grievance into a labour dispute.

Thirdly, the judgment draws a sharp distinction between labour law and commercial law. Complaints about the termination of a service agreement, loss of intellectual capital, or reputational harm belong squarely in the civil courts. Employers who attempt to recast contractual disputes as section 197 disputes risk swift dismissal and adverse cost orders. The Labour Court will not entertain claims that fall outside the architecture of the LRA simply because they are framed in labour-law terminology.

The Court was also unmoved by the applicant’s reliance on urgency. While section 197 disputes are often urgent where employee security is at stake, urgency cannot be manufactured to protect a commercial position. Where employees remain employed and no employment rights are threatened, the rationale for urgent intervention falls away.

Finally, the costs order is telling. While the Court stopped short of a punitive costs order, it made clear that misusing the urgent roll and invoking section 197 without a legal foundation warrants censure. For employers on the receiving end of such applications, this is a welcome signal that courts will protect the integrity of labour-law processes.

The broader takeaway is a simple but important one. Employees are not assets, and workforces are not transferable property. Section 197 protects continuity of employment, not continuity of commercial advantage. Employers who respect that boundary — and who keep their commercial disputes where they belong — will avoid costly and ultimately futile litigation.  For employers operating in competitive, outsourced environments, the message is reassuringly clear: losing a contract does not mean losing legal certainty, and labour law will not be stretched to rescue commercial expectations.

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