The Labour Court’s decision in Bosch v Passenger Rail Agency of SA provides employers with a useful warning: when designing voluntary severance or early-retirement programmes, age may be an administratively convenient dividing line, but convenience does not make discrimination lawful. The dispute arose from PRASA’s efforts to reduce its wage bill and headcount. It introduced a voluntary severance package (“VSP”) for employees generally, while employees between the ages of 60 and 63 were instead offered voluntary early retirement (“VER”) where the VSP would have produced a higher amount. The financial distinction was significant. Employees younger than 60 could receive a VSP incorporating a “sweetener” of 2.5 weeks’ salary for every completed year of service. Employees between 60 and 63 were limited to a lump sum calculated according to the months remaining until retirement.

Bosch was 62 and had more than 44 years’ service. He initially obtained a VSP quote exceeding R2 million and submitted his application. He was subsequently informed that his application had been treated as one for early retirement and that he would receive R657,906.67 – effectively seven months’ salary plus notice pay.  After unsuccessfully pursuing PRASA’s internal grievance process, Bosch challenged the distinction as unfair discrimination based on age under section 6(1) of the Employment Equity Act (“EEA”). The difficulty for PRASA was straightforward: the different treatment was expressly determined by age. The Court found that the only reason Bosch received the substantially lower VER package rather than the VSP was that he was over 60.

Once discrimination on a listed ground such as age is established, section 11(1) of the EEA places the burden on the employer to prove that the discrimination did not occur, or that it was rational and not unfair, or otherwise justifiable. PRASA struggled at this crucial stage. Its witnesses had not made the decision to differentiate between employees according to age and could not explain why the board had done so. No board member, or anyone else involved in the decision, testified. The Court was therefore left without admissible evidence explaining why the distinction had been adopted or demonstrating the savings supposedly achieved by it.

PRASA also argued that Bosch could have withdrawn his application once he knew what he would receive and that, by accepting the VER payment, he had effectively waived his right to complain. The Court rejected this argument. It held that Bosch’s acceptance of the payment did not waive his right to challenge the discriminatory treatment. PRASA’s reliance on a “full and final settlement” provision similarly could not rescue the differentiation. This is an important practical point for employers. A signed separation document should not be treated as an automatic cure for an underlying discrimination problem.

The Court ultimately held that PRASA’s policy breached the EEA and that the failure to pay Bosch the VSP constituted unfair age discrimination. PRASA was ordered to pay a global amount of approximately R1.59 million, subject to tax, together with interest and costs. The judgment does not mean that employers can never differentiate between employees when designing restructuring, severance or retirement arrangements. It does, however, emphasise that where the differentiation is directly linked to a listed ground such as age, the employer must be able to justify both the distinction and the rationale underlying it with evidence. For employers contemplating voluntary retrenchment or early-retirement programmes, that justification should therefore be interrogated – and documented – when the scheme is designed, rather than reconstructed when the matter reaches court.

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Constructive dismissal is not an escape route for employees who are dissatisfied with their working environment, nor does every workplace grievance entitle an employee to resign and demand compensation. The Labour Appeal Court’s recent judgment in Royale Energy (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2026) 47 ILJ 2419 (LAC) provides a welcome reminder that intolerability is a high threshold, and that employers must be afforded a reasonable opportunity to address workplace complaints before employees resort to resignation.

The employee, a senior manager at Royale Energy, had experienced a difficult relationship with the company’s group chief executive officer over several years. Following an incident in August 2020, during which the CEO allegedly behaved aggressively and threateningly towards her, she lodged a formal grievance and requested the board’s intervention.  The employer responded by appointing an external investigator and proposing alternative reporting arrangements while the investigation continued. The employee, however, rejected the proposed arrangements, sought a mutual separation package exceeding R4 million and, when this was declined, demanded the investigation report.

Less than a month after lodging her grievance, and before the investigation had been completed, she resigned and referred a constructive dismissal dispute to the CCMA.  The commissioner found in her favour, a decision subsequently upheld by the Labour Court, which awarded compensation of approximately R1.15 million.

The Labour Appeal Court took a very different view and held that intolerability is not simply unhappiness. Section 186(1)(e) of the Labour Relations Act provides that constructive dismissal occurs where an employee terminates employment because the employer has made continued employment intolerable.  The Court reaffirmed that this requires an objective assessment. It is insufficient for an employee merely to believe that the workplace has become unbearable. The employer’s conduct must objectively render continued employment intolerable.

Importantly, the Court distinguished between an unpleasant or difficult working relationship and circumstances genuinely leaving an employee with no reasonable alternative but to resign. The employee had continued working despite several earlier incidents involving the CEO, none of which had been formally escalated to the board. When she eventually complained, the employer took steps to address her concerns. These facts were inconsistent with her contention that continued employment had become objectively intolerable.

Perhaps the most significant aspect of the judgment is the Court’s treatment of the employer’s response to the grievance. The employee had expressly requested intervention and indicated her willingness to participate in a process aimed at resolving the dispute. Yet, when the employer initiated precisely such a process, she resigned before allowing it to run its course.  The Court was particularly critical of the employee’s attempt to use the ongoing remedial process itself as evidence of intolerability. An employer cannot reasonably be expected to investigate allegations spanning several years, consider the competing versions and implement appropriate corrective measures within an arbitrarily short period.  Nor can an employee invoke a grievance procedure, refuse to allow it to reach its conclusion, and then rely on the absence of an immediate resolution as justification for resignation.

The Court also rejected the employee’s reliance on anticipated future misconduct. Constructive dismissal cannot be founded on speculation that working conditions might become intolerable at some future point – the employer must be given a fair opportunity to resolve the complaint.  Employers are entitled to investigate complaints, implement interim protective measures and explore workable solutions without automatically exposing themselves to constructive dismissal claims. This does not excuse genuine workplace bullying or permit employers to ignore legitimate grievances. It does, however, recognise that a properly constituted remedial process requires time and cooperation. The Labour Appeal Court found that no constructive dismissal had occurred.

For employers, the message is clear. A prompt, documented and reasonable response to workplace grievances can provide a powerful defence against constructive dismissal claims.  For employees, the lesson is equally important: a resignation does not become a dismissal merely because the employee is unhappy with the employer’s response.  The law protects employees against genuinely intolerable working conditions. It does not guarantee an immediate or preferred outcome to every workplace complaint.

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Employers undertaking restructuring exercises are frequently faced with a practical dilemma: where the new organisational structure contains fewer or different positions, how should they determine which employees are placed into those positions without turning the placement exercise itself into an unfair selection process?

The Labour Court’s recent judgment in SASBO – The Finance Union on behalf of Members v Access Bank (SA) Ltd; Kau & others v Access Bank (SA) Ltd provides useful guidance – and some welcome reassurance for employers.  Access Bank embarked on a large-scale restructuring process which affected approximately 150 employees. As part of the restructuring, employees were required to interview for positions in the new organisational structure. The interviews took place while the section 189A consultation process was still underway, and this became one of the employees’ principal complaints.  The employees argued that the Bank’s approach to selection was flawed. Among other things, they contended that the criteria were applied inconsistently, that the Bank had departed from Last-In, First-Out (LIFO) and had relied on subjective performance assessments. They also objected to interviews being conducted while consultations were ongoing.

The Bank, however, drew an important distinction between selecting employees for retrenchment and attempting to place employees into positions in the restructured business.

Its proposed selection criteria included skills, qualifications, experience and business-critical competencies, with LIFO applying where candidates were equally suitable. Importantly, the Bank maintained that the interviews were not being used to identify employees for dismissal. Rather, they formed part of its efforts to avoid or mitigate retrenchments by redeploying employees and placing them into available positions.  That distinction found favour with the Court. The Court confirmed that sections 189 and 189A require an employer to be transparent and responsive during consultation. They do not, however, require the employer to secure agreement on selection criteria. The fact that employees or their representatives disagree with the employer’s proposed criteria does not mean that consultation has failed. Indeed, the Court expressly confirmed that the rejection of counter-proposals does not, without more, amount to a failure to consult.  This is an important point for employers. Consultation is a consensus-seeking exercise, not a consensus-requiring exercise.

Perhaps more significantly, the Court accepted that requiring employees to compete for positions through an interview process can be fair where the purpose of that process is to avoid retrenchment, rather than to determine who should be retrenched.  Where agreement cannot be reached, an employer may ultimately implement fair and objective selection criteria after properly considering the alternatives proposed during consultation. In this case, the combination of skills, qualifications, experience, business-critical requirements and LIFO where employees were equally suitable was not found to demonstrate a failure to consult in good faith.

There is, however, an important caution.  The Court acknowledged that conducting interviews while consultation was still underway could reasonably create the impression that the outcome had already been determined and could undermine confidence in the consultation process. Nevertheless, even if the timing of the interviews was procedurally irregular, that did not render the consultation process fundamentally defective. The critical consideration was the purpose of the interviews: on the Bank’s version, they were directed at redeployment and placement, rather than identifying employees for retrenchment.  The judgment therefore provides employers with a useful roadmap when restructuring. There is nothing inherently unfair about asking employees to compete for positions in a new structure. Employers should, however, maintain a clear distinction between the criteria used to select employees for retrenchment and an assessment or interview process used to determine whether employees can be placed or redeployed into available positions.  That distinction should not exist only on paper. The purpose of the interviews, the positions available and the criteria against which employees are assessed should be clearly communicated during consultation. Employers should also genuinely consult on proposed retrenchment selection criteria, consider counter-proposals and be able to explain why those proposals were rejected.

Ultimately, Access Bank is a welcome reminder that the LRA does not require an employer restructuring its business to abandon legitimate considerations of skills, qualifications, experience and business-critical requirements, nor does it necessarily prevent employees from being interviewed for positions in a new structure.   The key is knowing what the interview is for. An interview designed to select who leaves may form part of the retrenchment selection criteria. An interview designed to find a place for an employee in the restructured business may instead be part of the employer’s attempt to prevent that retrenchment altogether.

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Reinstatement has long been recognised as the primary remedy for substantively unfair dismissal under the Labour Relations Act. Yet employers frequently raise the same practical objection when faced with an order restoring an employee to work: what happens if the employee’s job no longer exists?

The recent Labour Appeal Court judgment in Bakhresa SA (Pty) Ltd v Jaipal provides an important reminder that the disappearance of a position is not necessarily the end of the reinstatement enquiry. More significantly, it confirms that reinstatement and retrenchment are not mutually exclusive concepts. An employer may still embark on a genuine operational requirements process after reinstatement – but it cannot use redundancy as a shortcut to avoid reinstatement altogether.

The employee was dismissed following allegations that she had accused her employer of fraud in relation to Labour Court proceedings and had used inappropriate language towards management during an unprotected strike. The CCMA found the dismissal substantively unfair and ordered her reinstatement with retrospective effect. Both the Labour Court and, ultimately, the Labour Appeal Court upheld that decision.

The employer’s principal argument on appeal centred not on the fairness of the dismissal, but on remedy. It contended that reinstatement was no longer reasonably practicable because the employee’s position as Procurement Supervisor had become redundant after her dismissal. Her procurement responsibilities had been distributed among other employees and, according to the employer, there was simply no job to return to. That argument failed. The Court drew an important distinction between the disappearance of a position and the disappearance of the work. While the title of Procurement Supervisor may have fallen away, the procurement function plainly continued. The employer remained a large food manufacturing business that still required procurement services. The work had merely been spread across existing employees. That did not establish that reinstatement had become impossible or even impracticable.

More importantly, the Court emphasised that section 193(2)(c) of the LRA requires compelling evidence that reinstatement is not reasonably practicable. Bare assertions from management will not suffice. Employers seeking to rely on redundancy must demonstrate genuine operational circumstances making reinstatement futile or impossible. Unsupported claims that a position has been abolished will rarely meet that threshold. Perhaps the most commercially significant aspect of the judgment, however, lies elsewhere.

The Court expressly recognised that reinstatement does not prevent an employer from subsequently initiating a fair retrenchment process if operational requirements genuinely justify it. Once the employment contract has been revived, the employer remains entitled to consult under section 189 regarding any legitimate redundancy. What it cannot do is rely on its own unilateral decision to abolish a position during the employee’s absence as a reason to deny reinstatement in the first place. That distinction is critical. Reinstatement restores the employment relationship; it does not guarantee lifetime employment or freeze an employer’s operational structure. Businesses remain entitled to restructure where commercial realities demand it. Equally, employees whose dismissals have been found to be unfair remain subject to the same operational processes that would apply to any other employee.

The Court went even further by clarifying what reinstatement actually means. It is not necessarily a return to the identical job title previously occupied. Rather, reinstatement revives the employment contract on terms and conditions no less favourable than those that existed before dismissal. Positions evolve, reporting lines change and organisational structures shift. The law protects the contractual relationship – not necessarily the label attached to the role.

For employers, the practical lesson is an important one. If an unfair dismissal is challenged, replacing the employee, redistributing their duties or redesigning the organisational chart should never be viewed as an insurance policy against reinstatement. Courts are unlikely to permit employers to defeat the LRA’s primary remedy through changes that they themselves implemented after the dismissal. If genuine operational requirements arise, the appropriate course is to comply with the reinstatement order and then follow a procedurally and substantively fair consultation process under section 189.

The Labour Appeal Court’s judgment strikes a sensible balance. It preserves reinstatement as the primary remedy for unfair dismissal while recognising that legitimate business restructuring remains possible. Employers are not trapped by reinstatement orders – but nor can they use redundancy as a convenient escape route. In employment law, process still matters, and operational fairness cannot be achieved by bypassing the very protections the LRA was designed to provide.

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South African labour law has long recognised that a dismissal can fail for one of two reasons. The employer may not have had a fair reason to dismiss the employee, or it may have followed an unfair procedure. While both render a dismissal unfair, they are distinct enquiries with distinct remedies.

A recent Labour Appeal Court judgment in Universal Product Network (Pty) Ltd v Commissioner Mbatsana NO and Others provides an important reminder that those two concepts should never be conflated.

The dispute arose from a protected strike at Universal Product Network (UPN), Woolworths’ logistics arm, during 2015. Following widespread misconduct during the strike, approximately 256 employees faced disciplinary action for breaching picketing rules, violating a court interdict and obstructing access to the employer’s premises. After numerous disciplinary enquiries, almost all were dismissed.

The CCMA commissioner concluded that the dismissals were substantively fair. The employees had been properly identified, had breached the picketing rules and the employer had a valid reason for dismissal. However, the disciplinary process itself was procedurally flawed, resulting in an award of one month’s remuneration to each employee as compensation.  That should, in many respects, have been the end of the matter.  Instead, the Labour Court took a different approach. It reasoned that the procedural defects were so severe that they effectively tainted the outcome of the disciplinary proceedings, converting what had been a substantively fair dismissal into one that was substantively unfair. The court ordered reinstatement.

The Labour Appeal Court emphatically disagreed.  Perhaps the most significant aspect of the judgment is not simply the outcome, but the principle it establishes. The LAC rejected the proposition that “gross procedural unfairness” can somehow mutate into substantive unfairness. The current Labour Relations Act deliberately separates these two enquiries. Section 188 requires employers to prove both a fair reason for dismissal and a fair procedure. Failing one requirement does not erase compliance with the other.

The court illustrated the point with a practical example. An employee dismissed for theft without being afforded a disciplinary hearing may have suffered a procedurally unfair dismissal. That does not mean the employer suddenly lacked a fair reason for dismissal. The misconduct remains the misconduct. The procedural defect does not rewrite the facts.

This may appear obvious, but it is an important clarification. Over the years, various judgments have referred to “gross procedural unfairness” in different contexts, particularly where arbitration proceedings themselves were fundamentally defective. The Labour Appeal Court drew an important distinction between procedural unfairness during an internal disciplinary process and a gross irregularity during arbitration that deprives parties of a fair hearing. The latter may justify setting aside an arbitration award. The former does not transform the underlying reason for dismissal into an unfair one.

Equally important was the court’s criticism of the Labour Court for deciding a case that had never been pleaded. The employees had challenged the substantive fairness of their dismissals on the basis that they were not guilty and that dismissal was an inappropriate sanction. They had not argued that procedural unfairness itself rendered the dismissals substantively unfair. A reviewing court cannot create an entirely new case for a litigant. Litigation remains governed by pleadings, and review proceedings remain confined to the grounds advanced by the parties.

For employers, the judgment should not be read as permission to relax procedural standards. Procedural fairness remains a statutory requirement, and employers who disregard it may still face compensation awards. A procedurally flawed dismissal is still unfair.

What the judgment does provide, however, is welcome certainty. Where an employer can establish a fair reason for dismissal, procedural defects—even serious ones—do not automatically erase the substantive justification for the decision. The appropriate remedy will generally be compensation for procedural unfairness rather than reinstatement.

The Labour Appeal Court has therefore reaffirmed a principle that lies at the heart of dismissal law: substance and procedure travel together, but they remain separate journeys. Employers ignore either at their peril, but neither should be mistaken for the other.

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Constructive dismissal remains one of the more difficult claims to prove in South African labour law. Employees must do far more than demonstrate that the workplace was unpleasant or that their relationship with management had deteriorated. The legal threshold is a demanding one: the employer must have made continued employment objectively intolerable.

The recent CCMA decision in Ramugondo v Rand Water provides an important reminder that employers can cross that threshold not only through active misconduct, but also through a failure to intervene when workplace bullying is allowed to flourish.
The employee had initially enjoyed a positive working relationship with her manager. She was selected to attend executive meetings, received praise from senior leadership and appeared to have a promising future within the organisation. That changed dramatically within a matter of months.

The commissioner accepted evidence that the employee was systematically undermined by her line manager. Work was taken away from her and allocated to her graduate. She was excluded from meetings, publicly criticised in front of colleagues and clients, labelled incompetent and repeatedly humiliated. Her manager bypassed her entirely, communicated through her subordinate and created situations where she was deliberately set up to fail. The evidence painted a picture of sustained psychological erosion rather than isolated incidents of poor management.
Importantly, this was not simply a personality clash.  The employee attempted to resolve matters internally. She raised concerns directly, lodged a formal grievance and participated in the employer’s internal processes. However, those processes moved slowly. Meetings were delayed, prescribed timeframes were not met and the conduct complained of continued unabated while the grievance remained unresolved. By the time the employer eventually escalated the matter, the employee had already resigned.  This proved decisive.

Relying on the Constitutional Court’s decision in Strategic Liquor Services v Mvumbi NO, the commissioner reaffirmed that the test for constructive dismissal is not whether resignation was literally the employee’s only option. Rather, the question is whether the employer made continued employment objectively intolerable. That assessment requires consideration of the employer’s conduct as a whole, viewed reasonably and objectively.

The commissioner had little difficulty concluding that the manager’s conduct was ‘belittling, humiliating, degrading, cruel, uncalled for and completely unbecoming of a senior manager’. Significantly, the employer was aware of the employee’s complaints and the deteriorating working environment but failed to respond with sufficient urgency. In the commissioner’s view, it was this combination of persistent managerial misconduct and organisational inaction that ultimately destroyed the trust relationship between employer and employee.

One aspect of the award is particularly noteworthy.  Employers frequently defend constructive dismissal claims by arguing that employees resigned before internal procedures had been completed. Rand Water advanced precisely that argument, pointing out that another employee who had lodged a similar grievance was eventually transferred to another department.  The commissioner was unpersuaded.
By the time the grievance eventually reached its final stage, the employee had already reached her breaking point. The employer’s own delays had contributed to that outcome. An employee who has exhausted the remedies reasonably available to them cannot be expected to endure ongoing abuse indefinitely while waiting for a process that shows little sign of reaching a conclusion. Internal grievance procedures remain important, but they cannot become an excuse for organisational paralysis.

The remedy is equally significant. Rather than awarding compensation, the commissioner ordered reinstatement. Although constructive dismissal cases often result in compensation because the employment relationship has irretrievably broken down, the commissioner found that the real source of the intolerable conditions was the employee’s manager rather than the employer itself. Since another employee had already been transferred away from the problematic reporting line, there was no reason the applicant could not similarly be placed elsewhere within the organisation. Reinstatement was therefore both practical and appropriate.

For employers, the lessons are clear.  Workplace bullying is not merely an interpersonal issue or a leadership challenge. Left unchecked, it can expose an organisation to significant legal risk. More importantly, employers cannot rely on the existence of grievance procedures if those procedures are allowed to stagnate while the complained-of conduct continues. Policies do not protect employers; prompt, effective intervention does.

The message from Ramugondo is a simple but important one. Constructive dismissal is rarely established by a single incident. It is often the cumulative effect of persistent misconduct, organisational indifference and delayed intervention. When employers know that an employee is being subjected to ongoing humiliation and fail to act decisively, silence itself can become part of the intolerable working environment.

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The Labour Court in Nxele v Chairperson of the Disciplinary Hearing: Mudau NO and others considered yet another chapter in the protracted dispute between Mr Nxele and the Department of Correctional Services (“DCS“). The matter arose after the applicant challenged the extension of his precautionary suspension and sought to halt an internal disciplinary hearing following his invocation of section 188A(11) of the Labour Relations Act 66 of 1995 (“LRA“).

While the Court dismissed the challenge to the extension of the suspension on jurisdictional grounds, the judgment is noteworthy for its detailed consideration of section 188A(11), particularly in light of recent Labour Appeal Court (“LAC“) judgments concerning whistleblower protection under the Protected Disclosures Act 26 of 2000 (“PDA“).

The Court rejected the applicant’s challenge to the extension of his suspension, holding that he had failed to establish a proper jurisdictional basis for the Labour Court to grant the declaratory relief sought. The Court reiterated that its jurisdiction is limited by statute and that it does not possess a general supervisory power over all employment-related disputes. It further held that the Public Service Precautionary Suspension Guide is a policy instrument incapable of founding a contractual claim and that, in any event, the relevant regulatory framework authorised the chairperson to determine whether a suspension should continue beyond the prescribed 60-day period.

Section 188A(11) of the Labour Relations Act 66 of 1995

The more significant aspect of the judgment concerns the Court’s treatment of section 188A(11) of the LRA. The provision allows an employee or employer to require a pre-dismissal arbitration where the employee alleges in good faith that the holding of an internal disciplinary inquiry contravenes the PDA.

In considering the effect of a section 188A(11) request, the Court revisited its earlier decision in Nxele I. In that case, the Labour Court held that once an employee invokes section 188A(11), the request is effectively peremptory. The employer is obliged to institute a pre-dismissal arbitration, and any pending internal disciplinary proceedings must cease. The Court emphasised that the provision serves an important protective function by safeguarding employees who make protected disclosures and by avoiding parallel litigation.

Subsequent decisions sought to confirm this approach. In Mtweta v Transnet Freight Rail and Operating Division of Transnet (SOC) Limited, relying on Mamodupi v Property Practitioners Regulatory Authority and Another, the Labour Court held that a mere allegation of a protected disclosure was insufficient. According to that approach, an employee was required to demonstrate, at least prima facie, that a protected disclosure had been made and that a causal link existed between the disclosure and the alleged occupational detriment. The Court further held that a disciplinary chairperson was obliged to halt proceedings only where the employee had already approached the CCMA, bargaining council or Labour Court for relief under the PDA.

The present judgment notes, however, that the LAC has since provided authoritative clarification in Nxele IV. The LAC confirmed that an employee invoking section 188A(11) bears no obligation to prove that the disciplinary proceedings in fact contravene the PDA. Rather, it is sufficient that the employee only allege, in good faith, that such a contravention exists. The threshold is therefore lower than that suggested in Mtweta. The focus is on the bona fides of the allegation rather than proof that an occupational detriment has occurred.’

The Court also considered the question of who determines whether the jurisdictional requirements for a section 188A(11) inquiry have been met. In Matlala v Foskor Proprietary Limited and Others, the Labour Court held that this determination fell to the arbitrator appointed under section 188A. However, the LAC’s subsequent decision in Industrial Development Corporation of South Africa v Modika clarified that the initial jurisdictional determination belongs to the CCMA or relevant bargaining council itself. The administrative body’s decision to accept or reject a section 188A(11) referral constitutes the relevant jurisdictional ruling and remains reviewable on ordinary review principles. Courts should therefore refrain from anticipating or usurping that determination.

Applying these principles, the Court held that the General Public Service Sectoral Bargaining Council (”GPSSBC”) had not yet made a decision on the applicant’s section 188A(11) request. At the time of the hearing, the bargaining council had merely acknowledged receipt of the referral. It was therefore inappropriate for the Court to compel the conversion of the disciplinary hearing into a section 188A(11) inquiry or to otherwise interfere with a determination that falls within the statutory competence of the GPSSBC.

The Court concluded that once a section 188A(11) referral has been lodged, internal disciplinary proceedings are, at the very least, paused pending the CCMA or bargaining council’s decision. Should the referral be accepted and enrolled, the internal disciplinary process falls away and is replaced by a pre-dismissal arbitration. If the referral is rejected, the employee may challenge that decision or submit to the disciplinary process. The applicant’s request for final interdictory relief was accordingly dismissed.

The judgment provides important guidance on the operation of section 188A(11) and the interaction between the LRA and the PDA. Most significantly, it confirms that an employee invoking section 188A(11) is not required to establish the merits of an alleged protected disclosure at the outset. Instead, the employee need only allege in good faith that the disciplinary process constitutes an occupational detriment. The judgment further clarifies that the CCMA or bargaining council, rather than the employer, disciplinary chairperson or Labour Court, is responsible for making the initial jurisdictional determination regarding the referral. In doing so, the Court reinforces the protective purpose of section 188A(11) while respecting the statutory functions assigned to dispute-resolution bodies.

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Section 197 of the Labour Relations Act has long been one of the most misunderstood and misapplied provisions in South African labour law. Employers frequently assume that because a new contractor introduces different technology, different management structures or new operational methods, the incoming business is fundamentally different from its predecessor. The Labour Appeal Court’s recent decision in Electro Hydro World (Pty) Ltd v Murray & Roberts Cementation (Pty) Ltd and Others serves as a timely reminder that the enquiry is far more practical than that.

The dispute arose after Sibanye terminated Murray & Roberts Cementation’s contract to operate and maintain a grout plant at one of its mining operations following a competitive tender process. Electro Hydro World secured the new contract and argued that it would be operating a substantially different business. It intended constructing two larger, more technologically advanced grout plants, implementing different shift structures, using fewer employees and supplying much of its own equipment.  On that basis, Electro Hydro maintained that section 197 was not triggered and that it had no obligation to take over the employment of the 63 employees previously engaged by Murray & Roberts.

Both the Labour Court and, on appeal, the Labour Appeal Court disagreed.  In dismissing the appeal, the Labour Appeal Court reaffirmed an important principle that has consistently emerged from section 197 jurisprudence: courts are concerned with substance rather than form.

The starting point remains the familiar three-stage enquiry. There must first be a transfer from one employer to another. Secondly, what is transferred must constitute a business or part of a business. Thirdly, that business must be transferred as a going concern. Whether those requirements are met is determined objectively by examining the reality of the transaction rather than the labels the parties choose to attach to it.

What made this judgment particularly significant was the court’s emphasis on identifying the true economic activity being performed.  Although Electro Hydro was introducing larger plants, updated technology and different operational processes, the essential commercial reality remained unchanged. Before the tender, Murray & Roberts operated grout plants that produced grout and pumped it underground for Sibanye’s mining operations. After the tender, Electro Hydro performed precisely the same economic activity for precisely the same client using the same utilities, raw materials and underground infrastructure provided by the mine.  The fact that the service would now be delivered more efficiently, or at greater scale, did not alter the underlying business.

Equally important was the court’s treatment of assets. Electro Hydro argued that many assets had not transferred, including computers, software, furniture, printers, tools and other equipment that it regarded as essential to its operations.  The Labour Appeal Court rejected that argument. Section 197 does not require every asset used by an outgoing contractor to pass to the incoming contractor. The relevant question is whether the assets necessary to continue the business transferred. Here, the core operational infrastructure belonged to Sibanye and remained available to the incoming contractor. The office equipment retained by Murray & Roberts was peripheral rather than fundamental to the continuation of the business.

This aspect of the judgment is likely to have broader implications across outsourced services and mining contracts.  Businesses frequently redesign operations when taking over contracts. Technology improves. Staffing models evolve. Automation increases. None of these developments necessarily prevent section 197 from applying.  The real enquiry remains whether the underlying economic entity continues to exist despite those changes.

For employers, that distinction matters.  Winning a tender does not automatically mean that a contractor starts with a clean slate from an employment perspective. Equally, simply changing the way work is performed will not necessarily avoid the automatic transfer provisions contained in section 197.

The judgment reinforces that courts will adopt a practical, commercially realistic approach. They will examine what business is actually being carried on before and after the transaction, identify its essential operational characteristics and determine whether those characteristics have remained intact. If they have, section 197 is likely to follow, regardless of new technology, different equipment or revised organisational structures.

For organisations involved in outsourcing, insourcing or competitive tender processes, Electro Hydro World is a valuable reminder that section 197 cannot be avoided through careful drafting or operational redesign alone. If the same business continues in different hands, and similar assets are used to perform the business activity, the law is likely to recognise exactly that.

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The Labour Appeal Court’s judgment in Machi v Chep SA (Pty) Ltd and Others serves as an important reminder that workplace discipline is concerned with substance rather than technicalities. While employees are entitled to know the case they must meet, disciplinary proceedings are not criminal trials, and imperfectly drafted charges will not necessarily save an employee whose conduct fundamentally undermines the trust relationship.

The employee was employed by Chep as a Senior Human Resources Business Partner. In July 2017, while attending a company event in Cape Town, she requested permission to return early to Durban, explaining that she was feeling unwell and emotionally affected by the recent suspension of a colleague for fraud. Her manager approved the request and she flew back to Durban during normal working hours. However, instead of returning home to recover or reporting back to work, she went directly to the offices of a third-party company, Zala Corporates, where she chaired a disciplinary hearing. She later issued a finding in that matter describing herself as the company’s “HR Director”, despite not being a director or employee of Zala.   Following an investigation, Chep charged her with misconduct and dishonesty. She was ultimately dismissed.

The matter became more complicated at arbitration. The CCMA commissioner found the employee not guilty of the three formal charges contained in the charge sheet. Nevertheless, the commissioner concluded that the evidence revealed what was described as an “unexpressed fourth allegation” – namely that the employee had abused her employer’s trust by obtaining permission to leave a work function on grounds of illness and then performing work for another organisation during company time. The commissioner found that this conduct had destroyed the trust relationship and held the dismissal to be substantively fair, although procedurally unfair.

The employee challenged the award, arguing that the commissioner had improperly created a new charge that did not appear in the disciplinary notice. She contended that once she had been acquitted of the formal charges, the commissioner could not formulate a different basis to justify her dismissal. The Labour Appeal Court disagreed.

The Court held that the commissioner had not invented a new charge at all. Instead, the so-called “unexpressed fourth allegation” was simply a description of the conduct that had always formed the core of the employer’s case. The events of 6 July 2017 constituted a single factual narrative, and the employee had been fully aware throughout the disciplinary hearing and arbitration that her conduct in performing work for another entity after being excused from a company function was central to the allegations against her.

Importantly, the Court reaffirmed that disciplinary charges need not be drafted with technical precision. The real question is whether the employee understood the substance of the allegations and had a fair opportunity to defend herself. An employee suffers prejudice only where they are genuinely unaware of the case they are required to answer. In this instance, the employee had dealt extensively with the allegations during both the disciplinary process and arbitration and could not credibly claim to have been ambushed.

The Court was equally clear on sanction. As a senior HR professional, the employee occupied a position requiring a high degree of integrity, judgment and trust. By claiming to be unwell in order to avoid a work commitment and then undertaking work for another organisation during working hours, she engaged in conduct that struck at the heart of the employment relationship. Her actions were not viewed as a mere technical breach of policy, but as a deliberate and dishonest abuse of trust.

In dismissing the appeal, the Labour Appeal Court confirmed that dishonesty remains one of the most serious forms of workplace misconduct. Where an employee consciously acts in a manner that deceives the employer and undermines the trust relationship, dismissal will often be justified, particularly where the employee occupies a senior or fiduciary position.

The judgment offers a practical lesson for employers. While disciplinary charges should always be drafted carefully, labour tribunals will focus on the substance of the misconduct rather than the technical wording of the charge sheet. Ultimately, trust is the foundation of every employment relationship, and once that trust is deliberately betrayed, even a drafting defect is unlikely to save the employee.

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For many years, workplace bullying occupied an uncomfortable space in South African labour law. Employers recognised the damage it caused, employees experienced its effects, but disciplinary action often struggled to gain traction where misconduct did not fit neatly into traditional categories such as insubordination, harassment, or misconduct. A recent CCMA arbitration award in National Education Health & Allied Workers Union obo Mosimane v University of the Witwatersrand provides a timely reminder that workplace bullying is not merely a management issue – it can justify dismissal where the conduct is sufficiently serious and sustained.

The employee, a Senior Faculty Officer with more than 22 years’ service at the University of the Witwatersrand, was dismissed following numerous complaints from junior colleagues who accused her of bullying, intimidation, victimisation, humiliation and harassment. The allegations painted a troubling picture of a senior employee who repeatedly belittled subordinates, publicly criticised colleagues, withheld training, undermined staff members in front of students and co-workers, and used her position of authority to create a climate of fear.

The employee challenged both the procedural and substantive fairness of her dismissal at the CCMA, seeking reinstatement.

Central to the dispute was Wits University’s bullying policy, which defines bullying as repeated unwanted conduct that humiliates, demeans, lowers self-esteem, creates a hostile environment, or results in an unacceptable working environment. The policy specifically recognises the abuse of power as a hallmark of bullying and acknowledges that such conduct may manifest through intimidation, harassment and interference with a colleague’s ability to perform their work effectively. This is aligned to the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, released in 2022.

The evidence presented by the University was extensive. Multiple witnesses testified that the employee routinely shouted at colleagues, publicly embarrassed them, threatened their job security, undermined their competence, and failed to provide adequate training while simultaneously criticising performance shortcomings that arose from that lack of training. Several witnesses described feeling humiliated, intimidated and emotionally distressed by the employee’s conduct. One employee required counselling, while others became visibly emotional when recounting their experiences during the arbitration proceedings.

Significantly, the commissioner found that the evidence revealed a sustained pattern of misconduct rather than isolated incidents. The conduct was directed predominantly at junior employees and was enabled by the employee’s seniority and authority within the faculty. The commissioner concluded that the behaviour caused demonstrable psychological harm, disrupted workplace harmony and created a toxic working environment.

Perhaps more damaging than the misconduct itself was the employee’s response to the allegations. Rather than acknowledging any wrongdoing, she maintained that the complaints were fabricated and advanced a theory that multiple colleagues had conspired to remove her from the workplace. The commissioner rejected this explanation, finding it inherently improbable that several employees would independently manufacture complaints over an extended period.

The award contains particularly strong commentary regarding accountability. The commissioner observed that the employee’s continued denial of the conduct, coupled with attempts to minimise or dismiss the experiences of the complainants, demonstrated a profound lack of insight. Her refusal to accept responsibility, apologise or show remorse was regarded as a significant aggravating factor. Indeed, the commissioner noted that progressive discipline presupposes some appreciation of wrongdoing and a willingness to correct behaviour. In the absence of such insight, corrective discipline serves little purpose.

The commissioner ultimately concluded that dismissal was both procedurally and substantively fair. In doing so, emphasis was placed on the employee’s senior position, the repeated nature of the misconduct, the abuse of authority, the emotional harm suffered by multiple employees, and the complete breakdown of trust resulting from her continued denial and victim-blaming.

The decision sends a clear message to employers and employees alike. Modern workplaces are increasingly focused on psychological safety, dignity and respectful engagement. Bullying is no longer viewed as a personality clash or a management inconvenience. Where a senior employee engages in sustained conduct that humiliates, intimidates or victimises colleagues, particularly where power imbalances are exploited, dismissal may well be an appropriate sanction – even where the employee has lengthy service.

For employers, the case highlights the importance of having robust anti-bullying policies and taking complaints seriously. For employees, especially those in leadership positions, it serves as a stark warning that authority carries responsibility. Leadership by intimidation is not leadership at all – and where workplace toxicity becomes entrenched, the CCMA has shown little hesitation in endorsing dismissal as the appropriate remedy.

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