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.

The post When silence becomes complicity: Constructive dismissal, workplace bullying and the cost of doing nothing appeared first on Werksmans Attorneys.

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.

The post Nxele v Chairperson of the Disciplinary Hearing: Mudau NO and others, [2026] 6 BLLR 628 (LC): Clarifying the operation of section 188A(11) of the Labour Relations Act 66 of 1995 appeared first on Werksmans Attorneys.

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.

The post No grout about it: The LAC cements section 197 principles appeared first on Werksmans Attorneys.

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.

The post A charge by any other name would smell as sweet appeared first on Werksmans Attorneys.

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.

The post Bullies beware: When workplace toxicity becomes a dismissible offence appeared first on Werksmans Attorneys.

South African labour law is often discussed through the lens of employee protection. That is unsurprising. The Labour Relations Act, the Basic Conditions of Employment Act, and the raft of constitutional rights underpinning workplace regulation were all designed to address historical inequality and imbalance in the employment relationship. Yet, somewhere in the modern discourse, a dangerous misconception has emerged: that employers are little more than passive participants in their own businesses, stripped of the ability to manage risk, enforce standards, and protect commercial sustainability.

That is not the law.

The modern employer retains extensive rights recognised by statute, contract, and the courts. Those rights matter. Without them, businesses cannot function effectively, workplaces become unmanageable, and ultimately jobs themselves are placed at risk.

At the centre of the employer’s rights framework lies a simple principle: employers are entitled to run their businesses efficiently, profitably, and safely. The Constitutional Court and Labour Appeal Court have repeatedly recognised that managerial prerogative remains a foundational component of labour law. While employers must exercise that prerogative fairly and lawfully, the law does not require employers to tolerate misconduct, underperformance, insubordination, incompatibility, operational inefficiency, or conduct that undermines trust.

Too often employers are advised as though every disciplinary process is merely an obstacle course designed to avoid litigation. That mindset fundamentally misunderstands the purpose of workplace discipline. Discipline is not punishment for punishment’s sake. It is a legitimate operational mechanism intended to preserve standards, accountability, and workplace order.

An employer has the right to expect honesty from employees. That principle remains one of the most strongly protected interests in South African labour jurisprudence. Courts consistently recognise that dishonesty strikes at the heart of the employment relationship because it destroys trust. Once trust is irreparably damaged, continued employment may become intolerable irrespective of the employee’s length of service or prior record.

Similarly, employers are entitled to demand acceptable performance standards. Poor work performance processes are not acts of victimisation. They are lawful mechanisms intended to assist employees to meet operational requirements. The law does not require employers to indefinitely carry employees who are unable or unwilling to perform at the required standard, provided that fair procedures are followed and reasonable assistance is offered.

The same applies to incompatibility and workplace harmony. Senior employees in particular occupy positions requiring collaboration, leadership, and strategic alignment. Where an employee creates conflict, undermines management, damages workplace cohesion, or becomes fundamentally incompatible with the organisation’s culture or leadership structure, employers are entitled to intervene. Courts have increasingly recognised incompatibility as a legitimate basis for dismissal where the employment relationship has become unsustainable.

Importantly, employers also have the right to protect confidential information, customer connections, intellectual property, and competitive advantage. In an era where employees can move between competitors with unprecedented ease, restraints of trade and confidentiality obligations remain critical commercial tools. Courts will not enforce unreasonable restraints, but they continue to uphold legitimate protections where proprietary interests are genuinely at risk.

Operational requirements dismissals are another area where employer rights are frequently misunderstood. Retrenchment is not unlawful merely because it is unpopular. Businesses are entitled to restructure operations, reduce costs, introduce technology, outsource functions, or redesign reporting structures in pursuit of sustainability and efficiency. The law requires meaningful consultation and procedural fairness — not business paralysis.

Perhaps most overlooked of all is the employer’s right to workplace safety and risk management. Employers carry statutory obligations under health and safety legislation, regulatory frameworks, and common law duties of care. Those obligations necessarily include the right to investigate misconduct, suspend employees where appropriate, restrict access to systems or sites, and take decisive action where operational or reputational risks arise.

There is also a growing trend in modern labour disputes where every managerial decision is framed as retaliation, victimisation, or constructive dismissal. Courts, however, continue to distinguish between genuine unlawful conduct and ordinary workplace management. Employees do not acquire immunity from accountability simply because grievances have been raised or protected disclosures have been made. Employers remain entitled to manage performance, discipline misconduct, and protect operational integrity, provided those actions are not motivated by ulterior or unlawful purposes.

None of this means employers are above the law. Far from it. Fairness remains the cornerstone of South African labour relations. But fairness is reciprocal. The employment relationship is not designed to operate exclusively for the benefit of one side.

Healthy workplaces depend upon balance. Employees are entitled to dignity, fairness, and protection from arbitrary treatment. Employers are equally entitled to accountability, productivity, loyalty, and operational stability.

The most effective organisations are not those paralysed by fear of litigation. They are those that understand their rights, exercise them consistently, and implement fair but decisive management practices.

The post Employers have rights too: Rebalancing the modern workplace appeared first on Werksmans Attorneys.

The decision in Wheatley v Commission for Conciliation, Mediation & Arbitration & others (2026) 47 ILJ 997 (LC) provides a pointed reminder of the limits of urgent litigation in the Labour Court, and of the professional obligations resting on legal representatives who invoke it. At its core, the judgment is less about the underlying dispute and more about the disciplined application of procedural principle — and the consequences of departing from it.

The applicant approached the Labour Court on an urgent basis following a ruling by a CCMA commissioner refusing legal representation at arbitration. The relief sought was wide-ranging: the setting aside of the ruling, an order permitting legal representation, the removal of the commissioner, a directive compelling the CCMA to investigate and report to the court, and the remission of the matter for a de novo hearing. But the court found the application to be fundamentally flawed.  First, the relief sought was legally unsustainable. The Labour Court does not determine, at first instance, whether legal representation should be permitted in CCMA proceedings. That discretion is expressly conferred on the commissioner in terms of the CCMA Rules. An attempt to secure such an order directly from the court reflects a misunderstanding of the statutory framework.

Second, the application was procedurally defective. The applicant sought to review and set aside the commissioner’s ruling without placing the record of proceedings before the court, notwithstanding the clear prospect of factual disputes. As the court emphasised, the absence of the record in such circumstances is not a mere technical irregularity, but a substantive impediment to the proper adjudication of the matter.

Third, the choice of remedies was misplaced. Instead of seeking to compel production of the record, the applicant pursued a declaratory order that its absence constituted a “gross irregularity”. The court reiterated that a gross irregularity must arise in the conduct of the arbitration proceedings themselves, not in subsequent administrative processes. Similarly, the attempt to compel the CCMA to conduct an investigation and report to the court was rejected on the basis that the CCMA, as an independent statutory body, must be afforded the opportunity to address complaints through its own internal mechanisms before judicial intervention is sought.

The application for the commissioner’s recusal was equally untenable. No prior request for recusal had been made to the commissioner. More fundamentally, the Labour Court does not have jurisdiction to order the recusal or removal of a commissioner at first instance. Any challenge to a commissioner’s refusal to recuse must arise within the context of a review.

Overlaying these deficiencies was the issue of urgency. The court found that any urgency was self-created. There had been a material delay in launching the application, coupled with an attempt to impose compressed timelines on the respondents — including an organ of state — without proper justification. The court reaffirmed that urgent proceedings are not to be used to circumvent ordinary processes or to place respondents at an unfair procedural disadvantage.

In the result, the court exercised its discretion to dismiss the application, rather than merely striking it from the roll, on the basis that it constituted an abuse of process.

The most significant aspect of the judgment, however, lies in the costs order. The court ordered that the applicant’s attorney pay costs de bonis propriis. While such orders are reserved for exceptional circumstances, the court found that the conduct of the litigation demonstrated a marked degree of incompetence, gross negligence and recklessness, coupled with a failure to properly engage with the applicable rules and legal principles.

The judgment underscores an important professional principle: legal representatives are not passive conduits for their clients’ instructions. They are required to exercise independent judgment and to ensure that proceedings are conducted in accordance with the law and the rules of court. Where this duty is disregarded, the consequences may extend beyond the client to the practitioner personally.

The post Urgency misconceived: A cautionary note on process, principle and professional responsibility appeared first on Werksmans Attorneys.

The Minister of Employment and Labour has, in terms of section 6(3) of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”), increased the annual earnings threshold from R261,785.45 to R269,600.90, effective from 1 May 2026. This translates to a monthly threshold of R22,466.67. This means that employees earning above R269,600.90 per annum will no longer be entitled to certain protections contained in the BCEA, unless more favourable terms are provided for in their employment contracts or in applicable collective agreements.

The BCEA is a core feature of South African labour legislation that gives effect to the right to fair labour practices in terms of section 23(1) of the Constitution, and serves to safeguard and reinforce employees’ rights in relation to fair treatment and working conditions. By regulating and establishing rules in areas such as working hours, leave and remuneration, it promotes a productive work environment in which the rights and wellbeing of employees are prioritised.

The BCEA is subject to periodic amendments, including the recent adjustment to the earnings threshold, to reflect changing socio-economic circumstances and developments in the labour market. It is therefore essential for both employers and employees to stay informed about such changes to ensure ongoing compliance. These amendments ensure that the Act remains relevant and continues to provide adequate protection to employees while balancing the operational needs of employers.

The revised threshold affects the application of the following provisions:

• section 9 – ordinary hours of work;
• section 10 – overtime;
• section 11 – compressed working week;
• section 12 – averaging of hours of work;
• section 14 – meal intervals;
• section 15 – daily and weekly rest periods;
• section 16 – pay for work on Sundays;
• section 17(2) – certain protections relating to night work; and
• section 18(3) – pay for work on public holidays not ordinarily worked.

For instance, an employee who was earning above the previous R261,785.45 threshold, and therefore not entitled to overtime pay, may from 1 May 2026 become entitled to additional remuneration for overtime worked if they earn below the new R269,600.90 threshold.

Beyond the BCEA, the threshold has implications for other key labour statues. The Labour Relations Act 66 of 1995 (”LRA”) extends further protection to employees earning below the prescribed earnings, particularly through its deeming provisions. These refer to employees who work in non-standard employment arrangements, such as those employed by labour brokers, also known as temporary employment services, and under fixed-term contracts. Section 198A provides that employees placed by a labour broker to render services to a client may be deemed to be employees of the client if they are not performing a temporary service, such as where the employee works for the client for longer than three months. Section 198B of the LRA further provides that, where there is no justifiable reason for fixing the term of a contract, such employees may be deemed to be employed indefinitely.

In addition to the above provisions, the earnings threshold has implications under the Employment Equity Act 55 of 1998. Employees whose earnings exceed the prescribed threshold may not have disputes under Chapter II of the Act relating to unfair discrimination arbitrated by the Commission for Conciliation, Mediation and Arbitration (”CCMA”), and are generally required to refer such matters to the Labour Court for adjudication. This is subject to limited exceptions, such as cases involving alleged sexual harassment or where all parties consent to arbitration.

Employers are therefore advised to take proactive steps in response to the increase. This includes conducting a thorough review of employee remuneration structures across the workforce, evaluating the status of employees engaged on fixed-term contracts and reassessing arrangements involving labour brokers to ensure complete alignment with the applicable deeming provisions. As a whole, such proactive measures will assist in ensuring compliance with the relevant legislation and in reducing the risk of potential legal and operational complications.

In conclusion, the upward adjustment of the BCEA earnings threshold represents more than a routine annual revision; it has substantive implications for the scope of employee protections under South African labour law. The amendment affects not only the application of core BCEA provisions but also intersects with key protections under the Labour Relations Act and Employment Equity Act. Ultimately, the amendment reinforces the dynamic nature of labour legislation and the ongoing need to balance employee protection with operational efficiency in the modern workplace.

The post Understanding the 1 May 2026 BCEA Earnings Threshold Adjustment: Implications for employers and employees appeared first on Werksmans Attorneys.

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.

The post Summary of Recently Proposed Legislative Amendments: National Minimum Wage Act and Employment Equity Act appeared first on Werksmans Attorneys.

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.

The post Summary of Recently Proposed Legislative Amendments: Basic Conditions of Employment Act and Unemployment Insurance Act appeared first on Werksmans Attorneys.