Chapter 1.

1. Introduction.

The law underwent dynamic change due to the introduction and

enactment of new legislation and institutional development which requires
fairness regarding the relationship between the master and the servant
(employer and employee). The generalisation of labour law is to regulate
relationship of those who hire and those are hired. Labour law draws from
various statutes and, where applicable, the common law as well as the
judgements of the courts(precedents) charged with interpreting and
applying the rules.

2. Common law origins

South African Common Law contract of employment originated from the

(Locatio conductio) a Roman law contract of letting and hiring. The
employment relationship. Remains regulated by the common law to the
extent that legislation is inapplicable.1

Types of Locatio and Conductio

(i) Locatio conductio rei – the letting and hiring thing for a money
payment.
(ii) Locatio conductio operis – the forerunner of the independent
contractor.
(iii) Locatio conductio operarum – the letting and hiring of personal
services in return for remuneration.
3. Shortcomings of the Common Law

Statutory intrusion into the common law of employment who because of

general realisation that the law had lagged behind condictio in modern
commerce and industry. Recently the recognition of fundamental human
right and the entrenchment of constitution confirms, these shortcomings.

1
At ‘ common law’ there can be no legally binding relationship between the parties qua
employer and employee unless they have entered into a valid contract of employment,
the requirements of which are set out in chapter 3. Now, however, a valid contract is not
necessarily a sine qua non for the existence of an employment relationship.
The common law recognised the enduring nature of the employment
relationship. It gave no regards to the employees but to employers only.

4. Statutory Modification of the Common Law.

Legislature have favoured three (3) methods of redressing the inequality

between employers and employees.

(i) Imposing minimum conditions of employment for employees.

(ii) Promising collective bargaining.
(iii) Creating special tribunals to establish equitable rules.

5. The effect of the Constitution

The introduction of the Bill of Rights has had a profound effect on labour
and all branches of law in South Africa. It provides working mechanisms
for all citizens to challenge the legislation and action by the state or its
organs infringing the rights. Section 23 of the constitution, 1996, entails
the relevant provision regarding employment. Section 23 ; 1-6.

In chapter 2 of the Constitution contains several provisions relevant to

employment and labour law. These include:

 Protection against servitude

 Forced labour and discrimination.
 Right to pursue a livelihood
 Protection for children against exploitative labour practices
and hazardous work.

6. The Main Labour Statutes

(i) BCEA – Basic Conditions of Employment Act 75 of 1997
(ii) LRA – Labour Relation Act 66 of 1995
(iii) EEA – Employment Equity Act 55 of 1998
(iv) Constitution of the republic of South Africa Act 106 of 1996
 7. Statutory Bodies

NMWA - Natural Minimum Wage Act – reports to the minister for

determination of conditions of employment and the application of the
BCEA, in time differentials and adjustments to the minimum wage.

(i) CCMA – Commission of Conciliation, Mediation and Arbitration

(ii) NEDLAC – Natural Economic Development labour council
(iii) ESC – Essential Services Committee by LRA
(iv) NMWA - Natural Minimum Wage Act

8. Sources of Labour Laws

(i) LRA
(ii) BCEA
(iii) EEA
(iv) Constitution

9. Which laws applies?

Laws applicable at given times are determined by the contract of

employment service. If the terms of employment or conditions are
favourable to the employee BCEA.
CHAPTER 2

= THE INDIVIDUAL EMPLOYEE’S RELATIONSHIP

(i) Identifying parties to the employment

(ii) Common Law Contract
(iii) Statutory definitions
(iv) Judicial tests
(v) Statutory employees to employers

1. IDENTIFYING THE PARTIES TO THE EMPLOYMENT

Important:

 Identifying the parties

One of the fundamental issues, which arise in a labour dispute, is whether

the parties are ‘employees’ and ‘employers’ as defined by the legislation.

An employee is defined by the LRA as ‘any person, excluding an

independent contractor, who works for another person or for the State,
and who receives, or is entitled to receive, any remuneration and any
other person in any manner assists in carrying on or conducting the
business of an employer’. The significance of this definition is that it
establishes whether the protection against unfair dismissal ought to be
extended to a person. There are various tests utilized to establish whether
the person is an independent contractor (not protected by the LRA). See
SABC v McKenzie (1999) 20 ILJ 585 (LAC).

NB.

1. The object of the contract of service is the rendering of personal

services by the employee to the employer. The services are the
 object of the contract. The object of the contract of work is the is the
performance of a certain work or the production of a certain
specified result.
2. According to a contract of service the employee will typically be at
the beck of the employer to render his personal services at the
behest of the employer. However, by contrast, the contractor is not
obliged to perform the work himself or to produce the result himself,
unless otherwise agreed upon. A contractor may avail himself of the
labour of others as assistants or employees to perform the work or
to assist him in the performance of work.
3. Services to be rendered in terms of a contract of service are at the
disposal of the employer who may in his own discretion subject, of
course to questions of repudiation decide whether he wants to have
them rendered. The independent contractor is bound to a certain
specified work or produces a certain specified result within a time
fixed by the contract of work or within a reasonable time where no
time has been specified.
4. The employee is subordinate to the will of the employer. He is
obliged to obey the lawful commands, orders, instructions of the
employer who has the right of supervising and controlling him by
prescribing to him what work he must do as well as the way it must
be done. The independent contract, however, is notionally on a
footing of equality with the employer. He is not under the
supervision or control of the employer. Nor is he under any
obligations to obey orders of the employer in regard to the manner
in which the work is to be performed. The independent contractor is
his own master.
5. A contract of service is terminated by the death of the employee
whereas the death of the parties to a contract of work does not
necessarily terminate it.
6. A contract of service terminates on expiration of the period of
service entered into while a contract of work terminates on
 completion of the specified work or on production of the specified
result. Read Smit v Workman’s Compensation at 61A-H.

LRA Amendment Act of 2002, provides for an inclusion of S200A which

creates a presumption as to who is an employee:

CHARACTERISTICS OF AN EMPLOYEE.

 The way the person work is subject to the control or direction of

another person.
 The person’s hours of work are subject to the control or direction of
another person.
 In the case of a person working for an organization, the person
forms part of the organization.
 The person has worked for that other person for an average of at
least 40 hours per month over the last three months.
 The person is economically dependent on the other person for
whom he or she works or renders services.
 The person is provided with tools of trade or work equipment by the
other person; or
 The person only renders works for or renders services to one
person.

Whenever there is a problem to be resolved, it is paramount to establish

whether the parties are indeed employees and employer within the
meaning from the applicable statute (LRA) or the Common Law. It does
not apply however to people if they are not in the context of this book.

Commonly it is not difficult to identifying employers or employees, though

in some cases it may be difficult to determine whether parties have
entered into a contract based on;

(i) Locatio Conductio operarum – proper employment or

(ii) Locatio Conductio operis, a contract for the provision of work,
Please note that; Locatio Conductio operis, though entail provision of
services, it is not a contract of employment. The independent contractor
of the common law is not an employee under labour legislation e.g.
parties, agents, even though one party may work for the other.
Essentially, the determination between the locatio conductio operarum
and other contracts is that it entails rendering of work which is critically
important, because different legal consequences form the various forms
of contract.

Therefore, only employee’s proper are entitled to special security benefits

and have access to the statutory tribunals if they want to reach for
remedies for violation of their employment rights.

Only employers of these employees are bound by the labour statutes and
may be vicariously liable for the delict of their employers.

2. Common Law Contract

First thing is to determine whether there is an employment relation

between the parties, look into the contract they have enter.

A contract of employment comes into existence when the parties

conclude an agreement that conforms to the requirements of Locatio
Condictio operarum.

The contract of employment is defined in terms as a contract between two

persons (employer and employee), master and servant, for the letting or
hiring of the latter’s services for reward.

The master in this type of contract must be able to supervise and control
the servant’s work.

3. Statutory Definitions

Section 209 of the LRA defines an employee as.

(a) Any person, excluding an independent contractor, who works for

another person or for the state ad who receives or is entitled to
receive any remuneration and
 (b)Any other person who in any manner assists in carrying on or
conducting the business of an employer.

Section 83A of the BCEA and section 200A of the LRA highlight same very
important argument.

4. Judicial Tests / Judicial Assessments

Courts have been grappling with statutory presumption to distinguish

between the employment contract proper and the forms of contract
entailing the provision of work.

There are control tests, argumentation tests.

LAC has accepted that the dominant impression test left by the contract
and the actual working relationship is the final determinant and the legal
nature and consequences of the relationship.

By dominant impression test, means what is label implies; the contract

and relationships built on it must be examined as a whole to determine
whether the impression left looks more like an employment relationship
than like something else.

e.g FPS v Trident Construction 1989 (3) SA 537 (A), SA v John NO

1987 SA 702 (N).

in SABC v McKenzie, the LAC provided a very useful summary of the

main differences between the contract of employment proper and what is
called the contract of work.

DIFFERENCES;

Locatio Conductio Locatio Conductio operis (independent

operarum(employee) contractor)
1. Object of rendering personal services Object is the production of a certain
between the employer and employee. specified service or the production of a
certain specified result.
2. Employee renders services at the Independent contractor is not obliged to
behest of the employer. perform work personally unless under wise
 agreed.
3. Employer may decide whether it Independent contractor is bound to perform
wants to have an employee to render specified work or provide specified result
service. within a specified or reasonable time.
4. Employee is obliged to obey lawful Independent contractor not obliged to obey
reasonable instructions regarding instructions regarding manner in which
work to be done and manner which it work is be performed.
is to be done.
5. Terminated by death of the employee. Not terminated by the death of the
contractor.
6. Terminates on completion of the Terminates on completion of the specified
agreed period. work or production of the specified result.

5.1 Statutory Employees & Employers

Statutory definitions go beyond the common law definition of an employer

and employee, these include apart from persons employed by or working
for an employer, any person who assists in the carrying or conducting of
the business of an employer.

Currently, BCEA also gives the Minister power to deem any category of
persons to be employees for purposes of the Act buy Notice in the
Government Gazette. Section 83 of BCEA empowers the Minister.

Although a formal contract of employment is not a sine qua non, when

determining whether a person is an employee as defined in the LRA the
terms of the contract between the parties, if not determinate, may be
relevant.

DUTIES OF THE EMPLOYEE

 To enter and remain in service.

  To maintain reasonable efficiency- the standard of competence of a
particular employee depends on the capacity in which he/she is
employed and the status/ seniority of the employee.
 To further the employer’s business interests-failure to do so is a
breach of the relationship of trust between the parties and a breach
of the fiduciary duties.
 To be respectful and obedient.
 To refrain from misconduct generally- any misconduct which
renders the continuation of the employment relationship intolerable
and undermines the relationship of trust the parties may be
regarded as sufficient to justify dismissal.
5.2 EMPLOYER

The term employer is not clearly defined in the BCEA & LRA. It must be
determined by the definition of an employee- employee is a person who
receives service from another.

Distinguishing a term employer from hirer of work(lessee) in the locatio

conductio peris presents problems akin to distinguishing a true employee
from an independent contractor.

Incorporated companies, CC, Trusts or companies with partnerships, may

all be employees, however, it may be difficult to sue individual
shareholders for an unfair dismissal, but you take on a juristic
person(entity). Labour brokers are deemed employers by the LRA as they
hire persons for services.

DUTIES OF AN EMPLOYER

 To receive the employee into service.

 To remunerate the employee.
 To ensure safe working conditions (BCEA).
 To comply with contractual and statutory obligations.
5.3 Statutory Exclusions

LRA and BCEA both exclude from their scope certain categories of people
who may be employees in the common-law sense, but who are deemed
mot to be employees for the purposes of the Acts. Members of the South
African National Defence Force (SANDF) and State Security Agency (SSA)
are entirely excluded from the scope of the LRA. 2 Persons employed
outside the territorial boundaries of the Republic of South Africa are not
bound by the South African Legislation, unless perhaps the contract was
concluded in South Africa. If so then the parties accepted the jurisdiction
of the South African courts, or the employer is based in South Africa.
Conversely, foreign companies operating in South Africa are bound by the
Labour Acts.

(i) SANDF
(ii) SSA
(iii) Persons employed outside the borders of the republic of SA.

Chapter 3

THE INDIVIDUAL CONTRACT OF EMPLOYMENT.

 Formation
The contract, the locatio conductio operarum commences when the
parties have agreed to its essential terms, even if the commencement of
duties under contract is suspended for a particular period. Whether the
agreement of the parties gives rise to a binding contract of service nis
determined according to the general principles of the law of contract. Of
these principles the most important are:

i. There must at a time of contracting have been consensus between

the parties in the sense that they both had the serious intention to
create mutual rights and duties to which they would legally bound,
and they must have each been aware that the other had this
intention.

2
The SANDF has its own dispute resolution agreement, which ultimately presided over by
the Defence Special Tribunal, eg Phike v SANDF (2001) 22 ILJ 2298(LC).
 ii. Each party must have the capacity to act in the sense that he or she
is legally capable of performing the act which gives rise to the
formation of the contract.3
iii. The rights and duties assumed must be possible to perform.
iv. The rights created and duties assumed must be permitted by law.
v. If formalities are prescribed for the formation of the contract, they
must be observed.
Requirements of a valid contract of employment:

 Essentials
A contract of employment is an agreement between the two legal
personae(parties) in terms of which one of the parties( the employee)
undertakes to place his or her personal services are at the disposal of the
other party( the employer) for a indefinite or determined period in return
for a fixed or ascertainable remuneration and which entitles the employer
to define the employees’ duties and to control manner in which the
employee discharges them. In summary the essential elements of the
contract of employment are:

i. It is a voluntary agreement.
ii. There are two legal personae(parties).
iii. The employee agrees to perform certain specified and or implied
duties for the employer.
iv. The contract endures for an indefinite or specified period.
v. The employer agrees to pay a fixed or ascertainable remuneration
to the employee.
vi. The employer gains a (qualified) right to command the employee as
to the way he or she carries out his or her duties.
 The agreement
Both parties must enter a contract freely and voluntarily. They must at the
time of contracting be fully aware of the nature of the duties to which they
have agreed, and of the obligations they have assumed. The parties may

3
An example, where the employers representative lacks authority to conclude the contact
without the approval of the company board, the contract is invalid: Blue IQ Investment
Holdings v Southgate (2014) 35ILJ 3326(LAC) for the effect of non-variation clauses.
agree that the employee perform any kind of work, provided it is not
illegal or contra bonos mores (against good morals) or impossible to
perform. The employer’s contract must be reduced into writing prior to
agreement on all material terms and conditions brings an employment
relationship into existence. Essentially, duty of employees is to place their
personal services at the disposal of the employer, while the employer is to
remunerate the employee. Once there is agreement on these two issues,
contract is complete and legally operative. A contract of employment may
arise tacitly (understood without expression/ untalkative) if an employer
permits a person to work for some time without concluding an express
contract.4

 Formalities
Note that-

i. Contract of employment arises when the employee accepts the

employer’s offer unconditionally.
ii. Once either express or tacit agreement has been reached on the
nature of the employee’s duties and the remuneration, the contract
comes into being.
iii. I9f after concluding the contract the employer grants additional
benefits for a lengthy period without reserving the right to withdraw
them, such benefits may become a term of the contract.
iv. The Act requires that employers to provide employees with certain
information in writing which once done, would amount to a written
contract.

 Commencement
Contract is perfecta(complete) when the employer has made an offer of
employment, and the employee has accepted the offer. Contract
4
See Merriman v Williams 1880 foord 135 at 172 and Grahamstown Municipality v
Saunders 1906 EDC 197.
commences only when the agreement is reached on essential terms.
Contracts may be subject to suspensive clauses in terms of which the
parties agree the employee will commence work only at some future
date or if the employee is permitted to commence work, that the contract
will be confirmed only on the happening of some future event such as the
employee obtaining a work permit. The employer is then obliged to allow
the employee to commence work on the specified date, and failure to do
so without good cause constitute a breach of contract at common-law and
a dismissal under the LRA. A resolutive condition may take place after the
commencement of employment for example, where the employee is
required to sign a performance agreement within a stipulated time or
obtain a work permit or security clearance. Failure by the employee to
comply with such a condition terminates the contract and does not
constitutes a dismissal under the LRA.

Contracts of employment may be seasonal in the sense that their

operation is suspended for a period, and commences anew at the
beginning of the next period. An undertaking by an employer to re-employ
an employee is binding, under the LRA and this obligation is extended to
situations in which the employee has been given a reasonable expectation
of renewal.5

 CONTENTS TO A CONTRACT OF EMPLOYMENT

 The full names and address of the employer
 The name and occupation of the employee and a brief description of
the work for which the employee is employed
 The place of work, and, where the employee is required to report for
work.
 The date on which the employment begin
 The employee’s ordinary hours of work and days of work.
 The employee’s wage rate and method of calculating wages
 The rate of pay of overtime, if any.

5
See Chapter 9.
  The other cash payments to which the employee is entitled.
 Any payment in kind to which the employee is entitled and the value
of payment.
 How frequently remuneration will be paid.
 Any deductions to be made from the employee must be
communicated
 The leave which the employee is entitled to.
 Period of notice required for the termination of employment
 Any period of employment with a previous employer that counts
towards employee’s period of employment
 List of any documents that form part of the contract of employment,
indicating a place that is reasonably accessible to the employee
where a copy of each can be obtained.
NB. Any changes to these details must be recorded in writing

 Tacit and implied terms (to continue)

A tacit term is an ‘unexpressed provision of the contract which derives
from the common intention of the parties. Tacit terms are read into the
contract because it is assumed that, although the parties did not include
them expressely, they would have done so had they thought about them
at the time.

 Incorporated terms and conditions

If the contract is silent on particular terms and conditions laid down in
applicable legislation or collective agreements, the provisions of
legislation or collective agreements will be read into the contract as if the
parties have agreed to them. The LRA expressely provides that collective
agreements automatically vary, where applicable, individual contracts of
employment between employees and employers who are bound by those
collective agreements.

 The parties
The contract of employment requires two parties, the employer and the
employee. The capacity to conclude employment contracts is determined
by the same considerations as apply in the law of contract generally.
Contract by miners under the age of seven years are void\, while those
entered by ages between seven and 18 years are voidable at the instance
of the minor’s guardian. BCEA criminalise the employment of 15 years or
under the school-leaving age in terms of any law

 Variation
Once parties have agreed on the essential terms of the contract, its terms
are fixed in the sense that neither party may unilaterally vary them unless
the original contract provides variation. If contract provides variation in
writing, only a written variation will be effective

 By mutual consent- such terms and conditions in the

contract of employment may be varied at any stage by
mutual consent of the employer and the employee. Such
a consent need to written down and not express. Silence
coupled with acquiescence in the change may estop the
parties from later denying the klegality of the variation.
 Unilaterally by the employer after giving the
employee lawful notice to terminate the existing
contract.
Under the common law, employers who wished to vary terms and
conditions under which their employees were employed could terminate
their contracts on proper notice, and couple of notice of termination with
an offer to re-employ. Unilateral change is permissible for operational
reasons, the employer must consult the employee:

 Duration
 Fixed-term contracts- parties must clearly specify the
duration of their contract, it endures for the specified
period, unless the contract provides for earlier
termination by notice.
 Indefinite contracts- the contract of employment is
indefinite- in this sense only- where the parties do not
 specify a date of termination n, the contract endures
until it is terminated by the death of an employee, or by
the employee giving stipulated or reasonable notice of
termination, or until party elects to terminate on
fundamental breach by the other, or on retirement at
the agreed age, or one or more grounds accepted in
law.
 The employer’s power of command
Employers command to exercise control over the employee is one main
characteristic in the employment relationship. This means that unless
there is an element of hierarchical authority in the relationship, the parties
are not employers and employees. The legislature has gone a long way
towards redressing the imbalance between management and labour. By
protecting employee’s rights to form and join trade union, by granting
them right to strike and by conferring other employee rights, the LRA has
done much-some employers might say too much-to reduce unfettered
employer unilateralism that characterizes the common-law- employment
relationship.

The BCEA has gone still further by prohibiting employers from concluding
contracts on conditions less favorable than many of those prescribed.

 Legality
The LRA provides that a provision in any contract that directly or indirectly
contradicts or limits any provisions of section 4 or this section, is invalid
unless the contractual provision is permitted by this Act. Sections d4 and
5 confer a range of rights on employees and the applicants for
employment.

 Breach
A breach by either party of obligations imposed by the contract entitles
for the other either to accept the breach and claim damages or to reject it
and sue for specific performance, which in the employment context
means reinstatement. Acceptance by an employer of an employee’s
repudiation and cancellation of the contract constitutes a dismissal under
the LRA. If the court orders a specific performance, the guilty party must
restore the status quo before the breach, that is continuing to discharge
the obligations under the contract, otherwise the breach may be held to
have been condoned.

 termination
Under the common law, either party to an indefinite employment contract
may terminate the contract by giving the agreed notice or if a period of
notice has not been agreed, reasonable notice is required. Termination
without notice equals to summary dismissal, is permissible only if the
employee is in material breach. If not, the employee entitled to claim as
damages for repudiation the equivalent of the salary he or she would have
earned during the notice period.

Unless specific provisions are made for mid-term termination, fixed-term

contracts may not be terminated on notice before the date fixed for their
termination or at all if the employee has acquired a reasonable
expectation of further temporary or permanent employment.

CHAPTER 4(Lecture Notes)

BASIC CONDITIONS OF EMPLOYMENT, as derived from the BCEA.

1. Introduction
2. Application
3. Remuneration
4. Working hours
5. Annual leave
6. Sick leave
7. Parental leave
8. Family responsibility leave
9. Sundays and Public holidays
10. Notice of termination
11. Payments on termination
12. Certificate of service
13. Enforcement

1. Introduction
The conclusion of a contract of service creates reciprocal rights and
obligations between employer and employee. Under common law, the
parties were free to agree to whatever terms and conditions of
employment they wished or were prepared to accept, within the limits
only of the law, good morals, and reasonableness. Over the year,
however, the legislature has increasingly limited the contractual freedom
of the parties by legislation prescribing minimum conditions with which
employers and employees must comply. The statute that basic conditions
for all employees is the Basic Condition of Employment Act 75 of 1997
( BCEA), explained in this chapter.

The Act expressly stipulates that its provisions constitute terms of any
contract of employment, except to the extent that any other law or the
contract provides for more favourable conditions. Unlike its predecessor,
the current BCEA allows the parties some flexibility; certain provisions
may be varied by individual contracts or collective agreements, others
may be varied by agreements concluded in bargaining councils or by
ministerial determinations. Some provisions of the BCEA do not apply to
certain categories of employees.

2. Application
The BCEA applies to all employees and employers, including SANDF
members, but it does not apply to members of the SSA, unpaid charity
workers and some categories of persons employed on vessels at sea,
Seniors managerial employees, those earning more than amounts
prescribed by the minister, salespersons who travel to the premises of
customers and regulate their hours of work, and those who work for less
than 24 hours a month are exempted from the provisions governing hours
of work.

3. Remuneration
 The BCEA does not set minimum wages. However, the Act must be
read with the National Minimum Wage Act 9 of 2018 (NMWA)
(statutory body), which came into operation on 1 January 2019.
The NMWA sets the current national minimum wage for all ‘workers’ at
R20 an hour, accept for farm and domestic workers ( R18 and R15 per
hour, respectively) and those employed on government’s expanded
public works programmes ( R11 per hour).

 The minimum wage is the amount payable in money for an ordinary

hour’s work (i.e. up to 45 per week), excluding transport, food, tool
or accommodation allowances, payment in kind, gratuities or tips.
Employees are entitled to be paid at the minimum rate for at least four
hours per day, even if they work fewer. 6 Payment of the minimum wage
cannot be waived or excluded by contract or collective agreement. While
contracts of employment should, where applicable, be amended to reflect
the minimum wage, any change to existing terms and conditions of
employment to compensate for an increase in an employee’s wage will
amount to an unfair labour practise and ss 191, 193, 194(4) and 195 of
the LRA will apply. Provision is made for temporary exemption from
payment of the minimum wage, but the exemption authority may not

6
BCEA, s 9A.
allow for a reduction below 90% of the existing national wage, and only
for a maximum of one year if exemption is allowed.

 For the rest, as long as employees tender service, they are entitled
to be paid their earnings and other benefits as and when they are
due under the applicable contract, sectorial determination or
collective agreement.
Only non-performance by employees of the contractual obligations, other
than during periods of sick or annual leave or after working hours, entitles
the employer to withhold their earnings. A strike, whether lawful or
unlawful, is deemed to constitute non-performance as far as remuneration
is concerned.

 Payment of remuneration may be in South African currency, daily,

weekly, fortnightly and in cash, by cheque or by direct deposit into a
bank account designated by the employee.
Cash or cheque must be handed to employees at the workplace, unless
otherwise agreed, during working hours or within 15 minutes of the their
commencement or conclusion, and in a sealed envelope together with
information relating to the period for which payment is made, the amount,
any deductions and their purpose(s) and, if relevant, the overtime rate,
number of ordinary and overtime hours worked and the number of hours
on Sundays and public holidays. All remuneration must be paid within
seven days of the end of the period which it is payable or within seven
days of the termination of the contract.

 Deductions from employees’ remuneration are prohibited unless the

employee has agreed to them in respect of a specified debt, or
unless deduction are required or permitted in terms of the law,
collective agreement, and court order or arbitration award.
However deductions may be affected to reimburse employers for loss or
damage caused by the employees in the course of their employment, but
only with the employee’s consent, if the loss or damage was due to the
employee’s fault, if the employer has given the employee a reasonable
opportunity to show why the deductions should not be made, and if the
total amount of the debt does not exceed the actual amount of the loss or
damage or one-quarter of employee’s remuneration in money. 7 Punitive
fines for negligence or other misconduct are thus precluded.

 Employees who are suspended pending disciplinary action are

entitled to their full pay during the period of suspension.
Those suspended without pay as disciplinary sanction alternative to
dismissal cannot claim for loss of salary under the BCEA, nor can those
who have not actually rendered service.

Special provisions governing the recovery of overpaid remuneration in the

public sector have been ruled unconstitutional, and parliament has been
directed to amend them to align them with the BCEA.

The BCEA also provides detailed methods for calculating employees’

earnings. These formulae are to be used for determining notice pay, or
payment in respect of accrued leave on termination of employment.
Remuneration is deemed to include the cash value of any payment in
kind. Allowances paid to enable employees to do their work and
discretionary payments not related to hours of work or work performance
are excluded.

4. Working hours

The common law leaves the parties free to regulate working hours. If their
agreement makes no provision for maximum hours of work, the time
during which the employee must render service is regulated by practice
and custom. Now maximum hours are regulated by the BCEA.

4.1 Maximum hours

In terms of the BCEA, and subject to certain exceptions mentioned below,

no employer may require or permit an employee to work longer than 45
hours a week or nine hours a day if the employee works five days or fewer
per week, and eight hours per day if the employee works more than five

7
Section 34(2) of the BCEA. For the requirements of a fair procedure, see Chapter 13.
The same principles would apply to hearings in this context. How the Labour Court should
take into account no-compliance with fair procedure in this context is not specified.
days a week. All work beyond hat is overtime, which can be worked only
with the employee's consent, to be given annually if embodied in contract
or collective agreement. Employees serving customers may be required
by agreement to work and additional 15 minutes per day at normal rates,
but not more than 60 minutes in a week, to complete their work. Work
that must be done without delay due to circumstances for which the
employer could not reasonably have been expected to make provision is
not regarded as overtime.

Furthermore, the minister is empowered to reduce maximum permitted

hours of work on the advice of chief inspectors appointed under OHSA or
the Mine Health and Safety Act 29 of 1996.

4.2 Overtime

The overtime rate is one and the half times the normal wage (excluding
benefits), unless the employee is subsequently granted 30 minutes off on
full pay for each hour of overtime worked at a normal rate, or 90 minutes
off If the overtime was not paid at all. Time off in lieu of pay for overtime
must be taken within a month of the time worked unless the employee
agrees in writing to no longer period of up to 12 months.

Although overtime is voluntary, the BCEA does not affect the employer's
right to require employees to work overtime in terms of the contract of
employment or collective agreement. If contracts, collective agreements
or wage determinations limit overtime to a certain number of hours,
employers may compel the employees to work the overtime provided for,
but may not compel them to work longer hours, except in emergencies, 8
provided that the emergency is genuine. 9 An operational requirement
giving rise to a need to work overtime is not an emergency if it is
foreseeable; even if employees have habitually worked overtime in given
situations, that practice does not trump the BCEA.

8
Anykwa v MEC for Health, Eastern Cape [2013] 2 BLLR 176 (LC).
9
Tiger Bakeries v FAWU (1988) 9 ILJ 82 (IC); Khan v Rainbow Chicken Farms ( 1985) 6 ILJ
60 (IC).
Dismissals of employees who reasonably refused to perform voluntary
overtime have been ruled unlawful by the civil courts, and unfair by the
labour courts.

Employees claiming overtime pay under the BCEA need only to prove that
they have worked overtime, after which the onus shifts to the employer to
prove compliance with the Act.

4.3 Night work

Special provision is made for night workers- those working after 18:00 and
before 06:00 the following day. 10 Work may be performed during these
hours only with the employee's consent. Night workers must be
compensated with an allowance, the amount of which is not specified.
Transport to and from their residences must be provided. Furthermore, if
employees work at night on a regular basis (ie at least 50 times a year)
their employer must inform them of health and safety hazards associated
with the work the employees are required to perform, and of their right to
undergo a medical examination on request at the employer's expense.
Employees suffering from adverse health must if reasonably practicable
be transferred to suitable day work. They must, however, prove that night
work is adversely affecting their health, or at least give the employer an
opportunity to have them examined. They cannot simply refuse to
perform night work.11 If it is not possible to move the employee to a
daytime shift, the employer may then treat them as incapacitated. 12 Night
work includes overtime work performed after 6pm even if the employee's
normal shift ended then.13

4.4 Meal and rest breaks

Employees are entitled to a meal interval of one continuous hour after five
hours work, for which they must be paid if they are required to work or to

10
Section 17. Employees are deemed for purposes of this provision to be on night duty
from 18:00 even if their shift started earlier: TFD Network Africa v Singh NO (2005) 36 ILJ
2142 (CL).
11
Papane v Van Aarde NO (2007) 28 ILJ 2561 (LAC)
12
Papane v Van Aarde NO (2007) 28 ILJ 2561 (LAC) at [51].
13
TFD Network Africa v Singh NO (2017) 38 ILJ 1119 (LAC).
be available for work. If break exceeds 75 minutes, the employees must
be paid unless the live on the premises. Meal intervals may be reduced by
agreement to no less than 30 minutes, or they may be dispensed with
altogether if the employee works less than six hours in a day. 14 If meal
breaks are reduced to less than an hour, the breaks are unpaid if the
employees are paid hourly.

Every employee is entitled to a daily rest period of at least 12 consecutive

hours between the end of the day's work and the start of the next, and to
a weekly rest period of at least 36 consecutive hours, which must include
a Sunday, unless otherwise agreed.15 Daily rest periods may be reduced
by written agreement to 10 hours if the employee lives on the premises
and has a meal interval of no longer than three hours. Weekly rest periods
may be altered by agreement to 60 hours per fortnight, or be reduced by
up to eight hours in any week if the rest period in the following one is
extended proportionately.

5. Annual leave

With the exception only of those who work for fewer than 24 hours, all
employees, irrespective of status or remuneration are entitled to annual
leave of at least 21 consecutive days per annual leave cycle of 12 months,
commencing on employment or at the end of the previous cycle. Annual
leave must be on full normal pay and may be granted at a time specified
by the employer but must be taken within six months of the completion of
the previous leave cycle. If a public holiday falls in a period of leave, the
employee's leave must be extended by a day. Employees are entitled on
written request to take paid annual leave during a period of unpaid
leave.16

Leave entitlement may be changed by agreement to one day off for every
17 days worked, or one hour’s leave for every 17 hours worked. If an
employee takes occasional leave, the period of continuous annual leave
may be reduced proportionately. Leave may not be taken during a period
14
Section 14.
15
Section 15.
16
Section 20(7)
of sick leave or while the employee is on notice of termination of service
and an employer may not pay in lieu of leave, except on termination of
employment. Employees must be paid for their leave before it commences
or, by agreement, on normal pay days.17

On termination of service, an employee is entitled to be paid for any leave

due but not taken, and to leave accrued during an incomplete annual
leave cycle at the rate of one day’s pay for each 17 days worked. 18 Leave
accrued but not taken in any but the latest cycle is forfeited. 19 Leave
accrued during earlier leave cycles may be claimed under the contract of
employment in respect of days in excess of those provided for in the
BCEA, provided the contract does not contain a forfeiture clause. 20
Employers may, if they wish, incorporate leave pay in their employee’s
remuneration packages, and leave it to the employees to pay for
themselves from the excess when they take leave. 21

6. Sick leave

Employees are entitled to one day’s paid sick leave for every 26 days
worked during the first four months of employment, and thereafter to the
number of days they normally work in six weeks during each 36-month
cycle.22 Pay during sick leave may be reduced by agreement below the
normal rate received by the employee if the number of day’s paid sick
leave is increased at least commensurately with any reduction in the daily
amount of sick leave pay, provided that the rate is not reduced to below
three quarters of normal wage and the number of days granted is at least
the equivalent of those the employee normally works in six weeks.

The right to sick leave accrues only when employees cannot work because
of incapacity, which means inability to work owing to sickness or injury.
The requirement set by the 1983 BCEA that the incapacity must not have
been caused by the employee’s conduct no longer applies – the only
17
Section 20.
18
Section 20 (11) and 40(b) and (c)
19
Ludick v Rural Maintenance (2014) 35 ILJ 1322 (LC)
20
Jooste v Kohler Packaging (2004) 25 ILJ 121 (LC).
21
Minny v Smart Plan (2010) 31 ILJ 675 (LC)
22
Section 22.
circumstance in which sick leave cannot be claimed by an employee is
when the incapacity was caused by an illness or accident defined in COIDA
or the Mine Health Safety Act 29 of 1996 and during the period for which
compensation can be claimed under these Acts.

Employees on sick leave must be paid their full salaries. If absent for more
than two days, or for more than one day if more than two absences
occurred in a space of eight weeks, they must if the employer requests
produce a medical certificate issued by a medical practitioner or person
certified to diagnose and treat patients and who is registered with some
statutory body.23 No medical certificate is required for an isolated day’s
sick leave, or if the employee takes unpaid leave. If the employee lives on
the employer’s premises, the employer must provide reasonable
assistance if necessary to enable the employee to obtain a medical
certificate.24

7. Parental leave

The 1983 BCEA merely prohibited the employment of pregnant woman for
12 weeks- four weeks to confinement and eight weeks thereafter but it did
not expressly protect woman against dismissal if they fell pregnant.
Surrogate parents are also entitled to maternity leave, even if they
happen to be male.25 The LRA confirms the unease expressed by the
erstwhile industrial court over this situation by defining the refusal to
allow an employee to resume work after she took maternity leave as a
dismissal,26 and declaring automatically unfair the dismissal of an
employee on grounds of pregnancy or intended pregnancy or any reason
related to her pregnancy.27

The current BCEA confers a right to four consecutive months’ unpaid

maternity leave. Paternity leave may be taken if the child is lost in the
23
These include traditional healers, but not all traditional healers are certified. Even so,
employers should not lightly disregard the views of ‘sangomas’ who certify that
employees are suffering from some form of superstitious compliant: see, for example,
Kievits Kroom Country Estate v CCMA (2011) 32 ILJ 923 ( LC).
24
Section 23.
25
Mia v SITA (2015) 36 ILJ 1905 (LC)
26
Section 186(1) (c) of the LRA.
27
Section 187(1) (e) of the LRA and Chapter 9.
third trimester of even if it is stillborn. This may commence at any time
from four weeks before the expected date of delivery or from a date from
which a medical practitioner or midwife certifies that leave is necessary
for the health of the mother and child. The employee may not work for six
weeks after birth, whether or not the child is born alive or miscarries,
unless a medical practitioner or midwife certifies that it is safe for her to
do so, provided only that the employee notifies the employer in writing, if
she can write, of the date on which she intends to start maternity leave
within four weeks of that date or when reasonably practicable. 28 This
provision does not oblige the employer in all circumstances to find a safer
position for the employee; the employer need only take reasonable steps.
If no alternative position is available, the employee must take the
maternity leave.29

Employers may not employ pregnant woman in work that is hazardous to

the health of mother or child, and if the mother is required to do night
work, the employer must offer her suitable alternative employment if
there is a threat to her health and if reasonably practicable. 30

The wages of new and expected mothers on maternity leave are

supplemented in part by the state in terms of section 24 of the
Unemployment Insurance Act 63 of 2001. Since the end of 2018, a father
is entitled to 10 days’ paternity leave after the birth of his child. Adoptive
parents are entitled to 10 weeks’ paid leave if they are the primary
caregivers.

8. Family responsibility leave

Employees who have been in employment for longer than four months
and who work four days or more each month for the employer are entitled
to three days paid leave during the 12- month leave cycle to discharge
family responsibilities in certain circumstances – i.e. when the employee’s
child is born of fall ill, or on the death of a spouse or life partner, parents,

28
Section 25 0f the BCEA.
29
Manyetsa v New Kleinfontein God Mine (2008) 39 ILJ 415 (LC); Samancor Chrome
( Eastern Chrome Mines) v NUM obo Mahlangu [2019] 1 BLLR 82 (LC).
30
Section 26.
adoptive parents, grandparent, child, adopted child, grandchild or sibling.
Unused family responsibility leave lapses at the end of the cycle. The
employer may require proof that the leave was taken for an authorised
purpose.31 This entitlement may be varied only by collective agreement.

9. Sundays and public holidays

Sundays and public holidays are rest days for employees. Sunday work
must therefore be remunerated at double the normal rate for each hour
worked by the employee, or at time and a half if the employee ordinarily
works on a Sunday, or at ordinary daily wage if that exceeds the amount
earned for the time worked. If the greater part of a shift falls on Sunday,
the whole of that shift is deemed a Sunday work. The only way employers
can avoid paying the higher Sunday rates is to conclude an agreement
with the employees or their unions in terms of which the employees are
given paid time off equivalent to the difference in value of the pay
received by the employee on a Sunday and the prescribed Sunday rates.
So if employees are paid normal rates on Sunday, they must be given a
day off on normal pay. The day off in lieu of Sunday work must be given
within a month of the Sunday worked, unless the employee agrees to take
it after a longer period.

Except when employees agree to the contrary, employers may not require
employees to work on proclaimed public holidays. 32 Employees not
required to work on public holidays falling on ordinary working days must
be paid their normal wage for those days. If employees work on public
holidays that fall on ordinary working days, they must be paid double their
ordinary rate. If the public holidays falls on a day when the employees do
not normally work, they must be paid their ordinary wage plus the amount
earned by the employees work for work done on that day, whether
calculated by reference to time or by any other method. Like those
spanning an ordinary day and a Sunday, shifts overlapping public holidays

31
Section 27(5).
32
Section 18(1)
are deemed to occur wholly within them if the major part falls on the
holiday.

Where a public holiday falls on Sunday, both Sunday and the following
Monday are separate public holidays. Workers who normally work on
Sundays are entitled to both days off on full pay. 33

10. Notice of termination of employment

 All employees working for than 24 hours a month for an employer

are entitled to the notice of termination provided for in their
contracts or, if no notice period is provided, to at least one week's
notice if the employee has been employed for six months or less;
two weeks’ notice if the employee has been employed for more than
six months but not more than a year; and four weeks’ notice
thereafter.34 Farm and domestic workers are entitled to four weeks’
notice after six month's employment.35 The only notice period that
may be reduced by collective agreement is the four weeks’ notice to
which all employees are entitled after a year's employment. 36 Notice
that must be given to employees who have worked for less than a
year, and to farm and domestic workers, may not be reduced.
 Notice must be given in writing, and may not run concurrently with
any period of annual, maternity or family responsibility leave.
If employees are accommodated on the employer's premises, their right
to remain in that accommodation ends with the contract of service. If the
contract is terminated without giving the prescribed notice, the employee
may remain in the accommodation from amounts owing to the employee
by way of notice.

33
Randfontein Estates v NUM (2006) 27 ILJ 1200 (LC), confirmed on appeal (Randfontein
Estates v NUM (2008) 29 ILJ 998 (LAC).
34
Section 36.
35
Section 37(1). The employer need not actually require employees to work during notice
period, but may insist that they remain at home. This is known as ‘gardern leave’ a
concept dealt with in Vodacom v Motsa (2016) 37 ILJ 1241 (LC).
36
Section 37(2) (b), read with 37(1) (c) (i).
  Employers given notice of termination in accordance with the
provisions of the BCEA are not precluded from disputing the
lawfulness or fairness of the termination under the LRA.
Employers and employees, however, are permitted to terminate the
contract without notice for any cause recognized by law- i.e. for material
breach by the defaulting party of the obligations under the contract. 37

 Employees are obliged to work through a notice period, unless the

employer exempts them from this obligation, in which case they
must be paid in lieu of notice.
 Notice of termination must be in writing (save when given by an
illiterate employee) and must be communicated to the other party
personally,38 unless the latter has appointed an agent with authority
to receive notice on his behalf. 39 Notice must also be clear and
unequivocal; the employee must be left in no doubt as to where he
stands as far as his continued employment is concerned and as to
what the employer's intention are.40 Once notice of termination is
withdrawn, it cannot be revived.41
 Notice may not be given to employees on fixed-term contracts
before their expiration, unless the contrary is agreed.
However, notice of the expiry of the contract need not be given unless the
employee has grounds for believing that it will be renewed. 42 On arrival of
the date or on fulfillment of the condition stipulated in the contract no
notice of termination is required. If the parties have allowed the contract
to persist beyond the stipulated date or after fulfillment of the stipulated
conditions, it is presumed that the parties have entered an indefinite-

37
Section 37(6) (b).
38
See TAWU v Natal Co-operative Timber (1992) 13 ILJ 1154 (D), in which notice given to
employees’ trade union was ruled improper. See also Tshabalala v Minister of Health
1987 (1) SA 513 (W) at 5201.
39
See Hanono v Willowvale Bantu School Board 1961 (4) SA 408 (A) at 414H.
40
TAWU v Natal Co-operative Timber (1992) 13 ILJ 1154 (D) at 1162G-H. Also Putco v TV
& Radio Guarantee Co 1973 (1) SA 372 (A) at 385G; Ntsobi v Berlin Mission Society 1924
TPD 378.
41
TAWU v Natal Co-operative Timber (1992) 13 ILJ 1154 (D) at 1163B-D.
42
In terms of s 186(1) (b) of the LRA the non-renewal of a fixed-term contract, or its
renewal on less favourable terms, is deemed to be a dismissal where the employee
reasonably expected it to be renewed on the same or better terms, see Chapter 9.
period contract, and the prescribed notice of termination will be required
thereafter.

Where notice must be in writing, a resignation will not be effective until it

is actually read by the employer or someone authorized to accept the
resignation on the employer's behalf.43

 Resignation brings the contract to an end from the moment it is

accepted by the employer or, if the employee gives notice, 44 from
the end of the notice period. Even if their contracts provide for a
longer notice period, employees are required only to give the notice
required by the BCEA.45 If they give shorter notice, they may be
liable in damages to the employer, provided the employer proves
that it has suffered loss.46
Once the employer has accepted an employee's resignation, the
employee may not revoke it. This applies also to the employer; once the
employee's resignation had been accepted, the employer's acceptance
cannot be unilaterally withdrawn. But where the resignation occurred in
the heat of the moment, the LAC held that it may be withdrawn, and that
the employer's refusal to allow the employee to do so may constitute a
dismissal.47 The idea that a resignation may not be withdrawn without the
employer's consent has been questioned obiter by the constitutional
Court,48 but that issue remains moot.

 As with notice of dismissal, a resignation on notice must be clear

and unconditional.
The test for valid resignation is whether the employee has either by words
or conduct, evidence a clear and unambiguous intention not to go on with
his contract of employment; the act must be such as to lead a reasonable
person to the conclusion that he did not intend to fulfil his part of the

43
ANC v Municipal Manager, George Local Municipality (2010) 31 ILJ 69 (SCA).
44
Fijen v CSIR (1994) 15 ILJ 759 (LAC)
45
Labournet Payment Solutions v Vosloo (2009) 30 ILJ 2437 (LAC)
46
Labournet Payment Solutions v Vosloo (2009) 30 ILJ 2437 (LAC); SAMRO v Mphatsoe
(2009) 30 ILJ 2482 (LC).
47
CEPPWAWU v Glass & Aluminium 2000 (2002) 23 ILJ 695 (LAC) at [33]-[36].
48
See Toyota SA Motors v CCMA (2016) 37 ILJ 313 (CC).
contract.49 Equivocal warnings like unless your work improves by the end
of the month you must leave or if you keep treating me like this, I am off”
will not bring the contract to an end. 50 An application for voluntary
severance pay package may be equated with a resignation once it is
accepted by the employer,51 provided that the employee is aware that
acceptance of his application will result in termination of his
employment.52 Acceptance of a resignation tendered without the required
notice binds the employer, provided that acceptance in unconditional and
unqualified.53

The notice period is determined by the contract. Where notice of a

calendar month is required, this normally means that the period ends at
the end of the month following that in which notice was given. Notice
required in weeks may be given at any time of the month. Employers may
sue employees for damages if they do not serve out their notice period,
but only if the employers prove they have suffered loss. 54 If an employer
does not give notice required by the contract or by the BCEA, the
employer may either hold the employee to the contract for the balance of
the notice period or accept the employee's notice as a form of
repudiation. The employee's failure to give notice does not affect the
binding nature of the resignation itself.55

Subject to two exceptions, all rights and obligations between employer

and employee terminate at the end of the notice period. The first
exception is where the employee concluded a restraint of trade
agreement while in the service of his erstwhile employer; the second
applies to employees who occupy houses provided by the employer.
These employees are entitled to remain in the employer's accommodation

49
See also CEPPWAWU v Glass & Aluminium 2000 (2002) 23 ILJ 695 (LAC) at [33]-[34].
50
Mphalala v Joseph (1936) SALJ 380.
51
Maada v MEC of the Northern Province for Finance & Expenditure (2003) 24 ILJ 937
(LAC).
52
A principle which may not have been applied in De Villiers v Premier, Eastern Cape
Provincial Government, (2012) 33 ILJ 382 (LC).
53
Meyer v Provincial Department of Health & Welfare (2006) 27 ILJ 2055 (T).
54
SAMRO v Mphatsoe (2009) 30 ILJ 2482 (LC)
55
Lottering v Stellenbosch Municipality (2010) 31 ILJ 2923 (LC).
until any dispute concerning their dismissal has been resolved under the
LRA.56

11. Payments on termination

On termination of employment, employees must be paid for any overtime

and Sunday work that was exchanged for days off but not yet taken, for
accrued annual leave due from present leave cycle and, if the employee
has worked for the employer for longer than four months, also for his or
her annual leave entitlement during the incomplete annual cycle at the
rate at least of one day's remuneration for every 17 days on which the
employee was entitled to be paid. 57 Leave accrued but taken in cycles
prior to the final cycle are forfeited. If the employee is dismissed for
reasons based on the employer's operational requirements, the employee
must be paid severance pay of at least the equivalent of one week's
remuneration for earn completed year of continuous service with the
employer, unless the employee unreasonably refuses an offer of
alternative employment.58 Amounts owing for accrued leave may not be
deducted by way of set-off to recover money owed the employer by the
employee.59 The Labour Court has held that it lacks jurisdiction to order
repayment of a salary inadvertently paid after an employee's dismissal.
This must be reclaimed by way of civil action. 60

12. Certificate of service

Employers need not to give employees character references on

termination of service. The BCEA requires employers to give employees
only a certificate of service on termination of their employment. 61
Certificates issued under the BCEA and wage-regulating measures must
reflect the full names of the employee and the employer, a description of
any bargaining council agreement or sectorial determination by which the
56
See the Extension of Security of Tenure Act 62 of 1997, s 8, analysed in Lebowa
Platinum Mines v Viljoen (2009) 30 ILJ 1742 (SCA).
57
Section 40. See Ingwane/Med Afrique [1997] 2 BLLR 210 (CCMA).
58
Section 41.
59
This must be recovered by civil action: see Botha and BATSA (2008) 29 ILJ 1301
(CCMA).
60
Telesure Group Service v Naidoo (2011) 32 ILJ 2769 (LC)
61
Section 42.
employer's business is covered, the dates of commencement and
termination of employee's employment, the title of the employee's former
job or brief description of the work which the employee was employed at
the date of termination, the remuneration at the date of termination and,
only if the employee so requests, the reason for the termination. 62 Earlier
provisos that certificates of service need not be issued to casual
employees or to those whose contracts have been terminated on the
ground of desertion do not appear in the current BCEA. They, too, are
therefore entitled to certificates of service.

13. Enforcement ( law enforcement in the employment service)

Employees whose employers fail to observe the basic conditions laid down
in the BCEA must report the breach to a labour inspector, who may
investigate the matter and, if the compliant is valid, issue a compliance
order to the employer if it fails to remedy the breach. Labour inspectors
must properly apply their mind to complaints before issuing compliance
orders, or they may set aside the labour court. If the employer fails to
comply with a compliance order, the DG may apply to the CCMA to have it
made an arbitration award. However, once certified by the CCMA,
arbitration awards which reinstate dismissed employees may be directly
enforced by applications to declare the defaulting employer in contempt
of court, and were compensation is aw

arded, the award may be executed as if it were an order of a magistrate's

court.

62
Section 42 (a)-(g).
CHAPTER 5-Lecture notes-5

Unfair labour practices

1. Introduction…………………………………………………………………..
2. The definition of unfair labour practice……………………………..
3. Unfair conduct………………………………………………………………..
4. Promotion………………………………………………………………………
5. Demotion……………………………………………………………………….
6. Training…………………………………………………………………………
7. Benefits…………………………………………………………………………
8. Disciplinary action short of dismissal and suspension………….
9. Whistle-blowers………………………………………………………………
10. Failure to re-employ in terms of an agreement…………………..
11. Other forms of possible unfair labour practise……………………
12. Failure to
appoint……………………………………………………………
13. Pension
rights………………………………………………………………..
 14. Transfer of
employees……………………………………………………..
15. Equal treatment
claims………………………………………………………

1. Introduction

Courts acting under the 1956 LRA identified a variety of employment

practices, apart from dismissals, which they pronounced unfair under
the general definition of unfair labour practice then in force. That
definition gave that industrial court virtually unfettered discretion to
decide which conduct was unfair. The 1995 LRA has substituted for the
open-textured definition a host of provisions which expressly identify
impermissible employer actions.

To succeed in an action based on an alleged unfair labour practices,

employees must prove that the conduct or practice complained of falls
within the terms of one of the forms listed in the definition. This
chapter deals with the various forms of expressly defined practices
which may be deemed unfair, and others that may conceivably be
brought within its terms or may give rise to an action for breach of
contract. The labour court has accepted that an ordinary breach of
contract may infringe the employee’s wider constitutional right to fair
labour practices, although a direct appeal to the constitutional right is
impermissible. To be challengeable, any unfair conduct must fall within
the statutory definition of unfair labour practice.

2. The definition of unfair labour practise

Unfair labour practices are defined as follows in section 186(2) of the LRA;

‘Unfair labour practice’ means any unfair act or omission that arises
between an employer and an employee involving-

(a) Unfair conduct by the employer relating to the promotion, demotion,

probation (excluding disputes about dismissals for a reason relating
 to probation) or training of an employee or relating to the provision
of benefits to an employee.
(b)The unfair suspension of an employee or any other unfair
disciplinary action short of dismissal in respect of an employee
(c) A failure or refusal by the employer to reinstate or re-employ a
former employee in terms of any agreement and
(d)An occupational detriment, other than dismissal, in contravention of
the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of
the employee having made a protected disclosure defined in that
Act.

3. Unfair conduct

Unfair conduct is a wider concept than unfair discrimination, but may

include it, conduct may be unfair without being discriminatory, while
discrimination is a species of unfair conduct. To constitute an unfair labour
practice, the act or omission complained of must be between an employee
and his or her own employer. Separate entities, like pension funds, cannot
perpetrate unfair labour practices against their members, unless they are
also its employees or the pension fund is controlled by the employer.
Employees cannot commit unfair labour practices against their employers.

4. Promotion

The unfair labour practice definition includes unfair conduct by employers

relating to promotion. To constitute an unfair labour practice of this kind,
the act or omission complained of relates to an employee then in the
service of the employer. Disputes concerning promotion are not limited to
claims of discriminatory treatment, although they may include such
claims. Employees may also claim that they were overlooked for
promotion for some unacceptable irrelevant or invidious reason, or that
the employer failed to follow agreed promotion policies and procedures, or
failed to adhere to advertised criteria.

The employee bears the onus of proving the allegation. They may have a
valid complaint if they can show that they have been overlooked for
promotion where they possess objective attributes, like experience or
qualifications, which the person who was promoted does not possess, and
their employers cannot explain why they were overlooked. In the absence
of a satisfactory explanation from the employer, an arbitrator may assume
that the employer acted in bad faith and therefore unfairly. But it is
generally not enough for an employee who complains of unfair conduct
relating to promotion simply to allege that they were better qualified or
more suitable than the successful candidate.

Arbitrators are not permitted to impose their own decisions on employers

with regard to whom to promote. They may interfere only if the employer
has acted in a procedurally unfair manner or in bad faith, and may order
instatement only where it is manifestly obvious that, but for the unfair
labour practice, the employee would have been promoted.

If an employer has regard to irrelevant criteria when choosing between a

better qualified candidate and a less qualified candidate, the failure to
promote the better qualified candidate may also be unfair. However,
employers are entitled to determine educational qualifications they think
are required for the post.

In short, it is generally held that, to succeed in an unfair labour practice

claim relating to promotion, the employer must be shown to have
exercised its discretion capriciously, for unsubstantiated reasons, or that
the decision was taken on wrong principle or in a biased manner.

Employers may also be guilty of unfair conduct relating to promotion if

they give employees a reasonable expectation that they will be advanced
and then, without adequate reason, frustrate that expectation. It may also
be unfair to advertise a position, setting a prescribed minimum
qualification, then to appoint a person who did not possess that
qualification; to create a position for specific person without advertising it
internally in accordance with agreed procedures; to invite applications for
a promotional post, then to appoint one candidate without considering the
others; to overlook evaluating an employee to determine whether they
qualified for appointment to an upgrade post; to change the advertised
requirements for the post midway through the selection process; and to
withdraw a post without first informing the successful candidate of the
decision to say so.

Unfair labour practices relating to promotion may also be perpetrated

through procedural irregularities. Where a successful candidate was
appointed, contrary to regulations, he had not disclosed the disciplinary
proceedings were against him, the LAC found that this was unfair to the
appellant employee and all other candidates. Appointing a candidate
lacked the advertised qualifications for the post was also ruled unfair
those who possessed those qualifications. So, too, was the sifting of
candidates by subjecting them to lie detector tests. However, the
procedural irregularity must have been such to render the outcome
unreasonable.

The mere fact that an unsuccessful applicant for the promotion received a
higher rating from the selection committee than the successful candidate
does not necessary render failure to appoint the former unfair. That an
employee was rated second by an interview committee does not entitle
him or her to be appointed to the position if the candidate rated first
declines to accept the post. However where a candidate rated first and
second declined to accept the post, the employer was required to give
reasonable explanation was the third candidate was not appointed. This
applies especially when the employer has the policy or past practice of
offering second rated candidate the post in those circumstances.

The dispute must relate to an alleged unfair failure or refusal to promote.

A disputed failure to appoint an applicant to a different position, even
though of a higher status, will not necessarily be classified as dispute
concerning promotion. In such cases employees who seeks relief must
bring their applications under section 6 of the EEA, which required proof
that the reason for the non-appointment amounted to unfair
discrimination. But failure to appoint temporary employees to permanent
positions has been held to give rise to a dispute concerning promotion, as
has failure to permanently appoint employees who have been acting in
position to those posts.

Retaining an employee in a newly upgraded post without increasing his or

her salary or benefits does not constitute a promotion dispute, but if the
employee’s salary is not increased, it does. So, too, do dispute arising
from an allegation that employees were placed on a grade lower than
they should have been. That one employee has been irregularly promoted
does not mean that others may jump on the bandwagon and claim that in
fairness they should also been promoted.

That the employee has acted in position higher than he or she is currently
graded does not in itself create an entitlement to be appointed to it on a
permanent basis, unless the employer has given the employee a
reasonable expectation of appointment, and perhaps if the incumbent of
the acting post is put out of job in consequence of the employer’s refusal
to appoint him to the vacant post.

To succeed in obtaining and order for instatement to the disputed post,

disappointed employees must prove that they would have been appointed
but for the employer’s unfair conduct. This may be difficult where there
were other suitable candidates apart from the successful candidate and
the complainant. Where a candidate was rated second to another who had
been given advance notice of the questions to be asked by the interview
panel, the court was satisfied that the applicant would have been
promoted and that the employer had been properly ordered to promote
him to the rank attached to the post.

When launching promotion disputes, practitioners should heed the

warning sounded in PSA v DOJ. The LAC held in that case that when
parties aggrieved by the employer’s failure to appoint or promote them
base their case on an allegation that the successful candidate was
unsuitable for the post ( or less suitable than the complainant ) he or she
should be joined with the employer in the application. However, the
successful candidate must be joined only hen relief sought affects his or
her rights. This is not the case where the applicant merely seeks
compensation. Unlawful promotions in the public sector may be set aside
on application by the employer.

Failure to effect a promotion that would have contravened the

requirements of a collective agreement cannot be unfair, even if the
employee had bona fide been led to believe that he qualified for
promotion.

5. Demotion

At common law, demotion without employee’s consent constitutes a

repudiation of the contract. But section 186(2)(a) by implication permits
an employer to demote an employee, provided only that this is done
fairly.

Employees complaining of unfair demotion must prove that they have

actually been demoted. Demotion occurs if employee’s remuneration,
responsibilities or status is materially reduced. An employee placed in a
post involving slightly different work is not demoted, especially if that
work falls within the scope of the employee’s duties. Neither does a mere
change of title constitute demotion. Employees also cannot be demoted
from posts to which they were not formally appointed.

Demotions may be deemed fair if they are aimed at avoiding

retrenchment or dismissal for incapacity, or if an employee is demoted as
a disciplinary penalty imposed for valid reason and after a fair procedure.
In such cases the employer is entitled to reduce the employee’s salary.
But unfair labour practices were found to have occurred when an
employee’s position was advertised and the employer indicated that if the
position were filled, the employee would be demoted, as well as when
demotion was imposed as a disciplinary penalty together with a transfer
to another division of the employer’s organisation.
 6. Training

Without guidance from a code of good practice or from the courts, it is

difficult to comprehend what is intended by ‘unfair conduct in relation to
training’. At face value the phrase suggests that employer may be obliged
to train their employees. But whether this provision entitles an employee
to relief if the employer does not provide training at all, or provides it
inadequately, or provides less than comparable employers, has yet to be
answered. Section 186(2)(a) may seem to suggest that the CCMA has
powers to act as a training board, prescribing to employers how they
should act in this area. It is doubtful whether the intention was to go this
far.

There has only been one reported case dealing with alleged unfair
conduct in relation to training. The LAC held that where disputes
concerning training involve an alleged unilateral amendment to
employees’ terms and conditions of employment, the employees may
choose between strike action and arbitration.

7. Benefits

Inclusion in the definition of ‘unfair labour practice’ of conduct in relation

to benefits greatly extends the potential scope of unfair labour practices
against which employees may get protection. Clearly contemplated as
falling within the scope of this term are discretionally bonuses, housing
allowances, medical aid, retirement benefits and other allowances. But
the labour court has held that the reach of the phrase ‘benefits’ stops
short of remuneration’ as defined in section 213. The court began by
holding commission on sales was not a ‘benefit’, but formed part of the
employee’s salary. ‘Benefits’ were said to be something ‘extra’, apart
from remuneration. Reduction of a commission rate accordingly did not
fall within the types of dispute which constituted potential unfair labour
practices.

The LAC has since recognised that the distinction between ‘extras’ and
payments in money or kind which fall within the definition of
‘remuneration’ is murky. For example, to classify annual bonuses as part
of ‘remuneration’ only if the employee is contractually entitled to them,
seems to place an unduly restrictive interpretation on the definition of
‘remuneration’, which appears by the use of the phrase ‘made…to any
person’ to be wider than payments in money or kind to which an
employee is contractually entitled. Many benefits traditionally regarded as
‘extras’, such as cat allowances, are written into contracts of employment.
The Labour Court has pointed out that many payments traditionally
regarded as benefits are now included in the definition of remuneration,
and tried to distinguish between ‘benefits’ contemplated in the unfair
labour practice definition and other benefits on another basis. Considering
whether an allowance for acting in a position constituted a ‘benefit’, the
court distinguished between ‘remuneration’, in the strict sense, and
‘extras’ failing within the statutory definition of ‘remuneration’.
Remuneration is of the essentialla of contracts of employment, while other
rights, advantages or benefits accruing to an employee by agreement are
naturalia. According to this judgement only the naturalia of a contract
qualify as benefits and may do so even though they are included in the
statutory definition of ‘remuneration’. However, since an acting allowance
is neither part of the essentialla of a contract not one of its naturalia, it
cannot be a benefit.

The LAC added a further reason for distinguishing between remuneration

and benefit in northerncape provincial administration v commissioner
hambidge NO. The court observed in that case that the former item 2(1)
(b) of schedule 7 to the LRA ( now section1862)(a) of the unfair labour
practice definition) was not designed to allow employees to refer to
arbitration disputes that would otherwise be disputes of interest. The
intention, the court said, was ‘to bring under the residual unfair labour
practice jurisdiction disputes about benefits to which an employee is
entitled ex contractu ( by virtue of the contract of employment or a
collective agreement).
Employees pending disciplinary are entitled to their full pay and benefits,
but they may not use the opportunity to supplement their income by
working elsewhere. The rights to paid while suspended has been held
even to apply to an employee who requested that disciplinary proceedings
against be him be suspended until related criminal proceedings were
concluded.

Suspended employees may challenge their suspension either by referring

an unfair labour practice dispute or by launching an urgent application in
the labour court. However, the LAC has held that, if urgency is proved, the
most the labour court can do in such urgent applications is to issue a rule
nisi pending the outcome of arbitration of an unfair labour practice
dispute. This ruling was not followed in the case of a blatantly unfair
suspension based on false news circulated on social media.

9. Whistleblowers

Section 186(2)(d) of the definition of unfair labour practice renders unfair

any occupational detriment in contravention of the Protected Disclosure
Act 26 of 2000 (PDA) which is designed to protect ‘whistleblowers’. The
PDA and the LRA together protect employees against dismissal, or any
prejudice if they disclose information to specified person concerning,
among other things, the commission of criminal offences, ‘miscarriages of
justice’, unfair discrimination and conduct detrimental to health and
safety or the environment.

To succeed in an unfair labour practice action under this head, employees

must prove, firstly, that the disclosure to which the employer took
exception was protected. A protected disclosure is identified by its
content, the manner in which and the person to whom it is made, and the
state of mind of the person making it. The disclosure must relate to the
forms of wrongdoing mentioned in the PDA, and must constitute
statements of fact, not unsubstantiated opinion. The disclosure is
protected only if the employee had ‘reason to believe’ that the
information would disclose one of the specified wrongs, and if the
disclosure was made to a legal advisor, an employer or a member of the
cabinet or the executive council of a province. Employees must also utilise
the procedures provided by the employer when making such disclosures.

An occupational detriment includes prejudice going beyond the forms of

unfair labour practice identified by the LRA. These include apart from
being dismissed, being subjected to disciplinary action, harassed,
intimidated, transferred or refused transfer, being subjected to adverse
alteration of terms and conditions of employment, or being ‘otherwise
adversely affected’ in employment, profession or office, including
employment opportunities or work security.

It the PDA dis not require that the disclosure must be based on facts the
employee reasonably believed were true, whistleblowers could be a recipe
for abuse. On the other hand, if workers could be punished for making
disclosures they genuinely believed to be true, the purpose of the PDA
could be frustrated. This conundrum has been noted by the LAC, which
has held that the PDA does not require employees who have disclosed
irregularities to prove the allegations. It is enough that they honestly
believe that the allegations tended to show the commission of
wrongdoing, and that the disclosure was made in good faith.

Unless both parties agree to the contrary, disputes arising from alleged
occupational detriments must be referred after unsuccessful conciliation
to the Labour Court, not statutory arbitration. However, if employees are
charged with misconduct which they allege is related to whistleblowing,
either the employee or the employer may insist that the matter be heard
by an outside arbitrator under section 188A of the LRA. Employees
dismissed for whistleblowing may also approach the High Court under the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000 (PEPUDA). In several cases, the court have interdicted employers
from taking disciplinary action against whistleblowers.

10. Failure to re-employ in terms of an agreement

Section 186(2)(c) gives statutory force to the decision in NAAWU v Borg-

Warner SA, in which the court held that the employer’s refusal to rehire
retrenched workers in terms of the agreement concluded with their union
after their dismissal constituted an unfair labour practice under the 1956
LRA. Section 186(2)(c) differs from section 186(2)(d), which deals with so-
called selective non-re-employment. Employee claiming that they were
not re-employed in terms of an agreement need not to prove that they
were treated selectively – mere breach of an agreement is sufficient. This
provision covers any agreement, not merely collective agreements as
defined.

Employees alleging this form of unfair labour practice must prove the
existence of an agreement that obliges the employer to re-employ them
in the particular circumstances of the case. A mere ‘intimation’ that the
employer will consider rehiring is not enough. Such agreements usually
require the employer to rehire dismissed employees if and when ‘suitable’
vacancies arise.

Whether a vacancy is suitable depends on the circumstances. So, too,

does the question whether the employer is obliged to employ the
applicant in particular, rather than another former employee with equal
claim to be reinstated in terms of a particular agreement.

To succeed in proving a breach of a rehiring agreement, the employees

must also prove that they were qualified for the new vacancies. In
Mtshali/Nestle SA, the company declined to re-employ the retrench
employees because they were not trained for vacancies that arose later.
This was held to constitute an unfair labour practice. On the other hand,
an employer’s work in breach of a rehiring agreement was held to have
committed an unfair labour practice because it was unable to explain why
it hired an outsider. The hiring of a contractor to perform the work of
retrenched employees was also held to constitute a breach of a rehiring
agreement. However, where an employer agreed to’ re-engage’
employees dismissed for misconduct and retrenched them shortly after so
doing, the company was held to have complied with the agreement.
CHAPTER 6-lecture notes-6

UNFAIR DISCRIMINATION

1. Introduction…………………………………………………………..
2. The anti-discrimination provision……………………………..
3. What is discrimination…………………………………………….
4. Direct and indirect discrimination……………………………..
5. Applicants of employment……………………………………….
6. The prohibited grounds…………………………………………..
7. Specific grounds of discrimination…………………………….
8. Defences against discrimination claims……………………..
9. Recruitment and selection……………………………………….
10. Remuneration benefits…………………………………………….
11. Harassment……………………………………………………………
 12. Medical testing……………………………………………………….
13. Dispute resolution…………………………………………………..
14. Remedies……………………………………………………………….

1. Introduction
The employment Equity Act 55 of 1998 ( EEA) aims to correct the
demographic imbalance in the nation’s workforce by compelling
employers to remove barriers to advancement of ‘Africans, Coloureds and
Indians’, woman and the disabled, 63 and actively to advance them in all
categories of employment by affirmative action’. The EEA, which
complements in LRA in some respects, consists of two main sections. The
first replaces and refines the prohibition on unfair discrimination originally
found in the repealed item 2(1) (a) of schedule 7 to the LRA. How the
courts interpreted and applied the concept of ‘unfair discrimination’ under
the original ‘residual unfair labour practice’ definition remains relevant.
The second part of the EEA, discussed in the following chapter, is novel. It
imposes a duty on employers to adopt affirmative action programmes.

2. The anti-discrimination provision

The EEA begins by pacing a positive obligation on all employers to
‘promote equal opportunity in workplace by eliminating unfair
discrimination in any employment policy or practice’. 64 This obligation is
reinforced by prohibition on unfair discrimination, which reads as follows; 65

No person may unfairly discriminate, directly or indirectly, against an

employee, in any employment policy or practice, in one or more grounds,
including race, gender, sex, pregnancy, marital status, family
responsibility, ethnic or social origin, colour, sexual orientation, age,
disability, religion, HIV status, conscience, belief, political opinion, culture,
language, birth or on other arbitrary ground.

63
The Act expressly provides that the term ‘black people’ means ‘Africans, Coloureds and Indians’. The
disabled are defined as ‘those with long-term or recurring physical or mental impairment which substantially
limits their prospects of entry into, or advancement in, employment’. These groups. Together with women of
all races, are termed ‘designated’ employees.
64
Section 5.
65
Section 6(1).
The Act also expressly includes harassment of employees on any listed
ground.

3. What is discrimination
The prohibition of acts or omission involving ‘unfair discrimination, either
directly or indirectly’ against an employee could embrace any
employment practice which has the effect of unfair discriminating in any
way, for whatever motive.66 An intention to discriminate need not
necessarily be present; the impact of the discriminatory practice is
decisive.67 The discriminatory practice must impact on the dignity of the
affected individual, who must be a member of a group deemed worthy of
protection.68

People are discriminated against in the ordinary sense when they are
denied privileges or rights accorded others. Employees who can prove
that others in comparable circumstances are accorded benefits they are
denied may be held to be victims of discrimination. 69 But in law,
discrimination extends further. Employees are victims of unfair
discrimination if they are singled out for prejudicial treatment on some
unacceptable ground. The addition of the phrase ‘any arbitrary ground’ in
an amendment widened the scope of provision slightly, but a person
relying on an arbitrary ground will still have to satisfy the court that the
ground deserves protection under section 6. 70 Discrimination does not
necessarily involve actual prejudice to the individual concerned.

66
According to its definition in s 1 of the EEA, an employment practice includes recruitment procedures,
advertising and selection criteria, the appointment process, job classification and grading, remuneration,
employment benefits and terms and conditions of employment, the working environment and facilities,
training and demotion, disciplinary measures and dismissal.
67
Ontario Human Rights Commission v Simpson Sears (1985) 2 SCR 536 at 551; Association of Professional
Teachers v Minister of Education (1995) 16 ILJ 1048(IC) at 1089-90.
68
See, for example, Stojce v KZN (2006) 27 ILJ 2696 (LC). The court pointed out by the way of example that
smokers, thugs, rapists, hunters of endangered wildlife and millionaires do not qualify for protection as a class.
69
See, for example, Leonard Dingler Employee Representative Council v Leonard Dingler (1998) 19 ILJ 285 (LC) (
separate and inferior pension scheme of predominantly black, hourly paid workplace). Where employees claim
wage discrimination, they must prove that for some prohibited reason they paid less than colleagues either on
this basis that they are paid less for doing for same work, or for work of equal value. If the latter, expert must
be led to prove that the work is indeed of equal value: see Mangena v Fila SA (2010) 31 ILJ 662 (LC).
70
See, Chitsinde v Sol Plaatje University [2018] 10 BLLR 1012 (LC),in which the applicant failed to discharge that
onus.
Employees denied promotion lose nothing in an objective sense; they are
merely denied benefits which in fairness they should have recorded.

Relative or actual disadvantage becomes unfair only if there is no

objective justification for distinguish the allocation of benefits. The
distinction may then be said to be ‘arbitrary’ means that the distinction is
based on some irrelevant criterion. Although section 6 of the EEA
indicates that the prohibited grounds are not exclusive, discrimination
falls within the scope of the prohibition only if is on ground akin to those
listed in the definition.

The Act now expressly includes as a form of unfair discrimination ‘a

difference in terms and conditions of employment between employees of
the same employer performing the same or substantially the same work
or work of equal value’ which directly or indirectly based on one or other
of the impermissible grounds (including, now, an ‘ arbitrary ground’). The
minister may prescribe criteria and the methodology for assessing work of
equal value.

The EEA protects job-seekers from unfair discrimination. Apart from being
precluded from discriminating against applicants on the listed grounds,
employers are not permitted to hold ‘lack of relevant experience’ against
them.71 Psychometric and other forms of psychological testing which are
not based on acceptable scientific standards or approved by medical
council are prohibited. The Act also makes harassment a form of
discrimination,72 provided that it is for a reason akin to the listed grounds
listed in section 6(1). Employees who claim to have been discriminated
against on an ‘arbitrary’ ground must prove that ground is akin to the
listed grounds.73

71
Section 20(5).
72
Section 6(3).
73
Mbana v Shepstone & Wylie (2015) 36 ILJ 1805 (CC).
The onus of proving discrimination rests on the employee. 74 Once this
onus is discharged the onus shifts to the employer to prove that it has not
acted unfairly.75

4. Direct and indirectly discrimination

Discrimination may be either direct or indirect. Direct discrimination
occurs when adverse action is taken against people precisely because
they possess one of the characteristics listed in section 6, or comparable
attributes. Direct discrimination is invariably intentional. Indirect
discrimination occurs when seemingly objective or ‘neutral’ barriers
exclude members of particular groups because members of those groups
happen to be unable to surmount the barriers – for example, a height or
weight requirement that would exclude all but a tiny minority of woman.
Indirect discrimination may be intentional or unintentional. 76 And the
employee need not prove that he has been prejudiced or suffered loss. 77
Dismissing an employee for taking maternity leave was found to be
indirectly discriminatory, even though the employer was under the
impression that it was entitled to dismiss her for incapacity. 78

5. Applicants for employment

The EEA expressly provides that, for purposes of its anti-discrimination
provisions, the term ‘employee’ includes applicants for employment. 79 The
precise meaning of the term ‘applicant’ for employment ‘has not yet
received detailed judicial attention. People can only be described as
applicants if they have indicated their desire to enter into contract of
employment. Applicants for positions as independent contractors would

74
This may be different to discharge: see, for example, Mahlanyana v Cadbury (2000) 21 ILJ 2274 (LC) and
Stojce v UKZN (2006) 27 ILJ 2696 (LC).
75
Section 11 of the EEA.
76
See, for example, Association of Professional Teachers v Minister of Education (1995) 16 ILJ 1048(IC) and ,
Leonard Dingler Employee Representative Council v Leonard Dingler (1998) 19 ILJ 285 (LC)
77
Leonard Dingler Employee Representative Council v Leonard Dingler (1998) 19 ILJ 285 (LC)

78
Collins v Volkskas Bank (Westonaria Branch) A Division of ABSA Bank (1994) 15 ILJ 1398 (LC).
79
Section 9.
accordingly not be covered by the EEA. 80 Moreover, it seems to follow that
only people who have applied to an employer for a position can bring
action for unfair discrimination in terms of section 6. A person who has
lodged an application with an employment agency to be considered for
placement with any employer would accordingly not be an ‘applicant for
employment’ within the meaning of section 9. 81

6. The prohibited grounds

The word ‘including’ in section 6(1) suggests that the listed grounds are
not exclusive, and that other grounds may also conceivably found claims
of unfair discrimination. The addiction of ‘any arbitrary ground’ confirms
that grounds other than those listed may be prohibited. The Constitutional
Court held that the grounds set out in the similarly phrased anti-
discrimination provision in the interim Constitution were not exhaustive.
But employees who rely on an arbitrary ground not listed as a prohibited
ground under the EEA must be able to indicate what that ground is, and
satisfy the court that it is akin to one of the prohibited grounds. 82

Where discrimination is based on some other grounds, it is presumed to

be unfair; if the discrimination is based on some other ground, the
complainant must establish unfairness.83 However, discrimination in the
sense contemplated by the constitution takes place only if the ground
upon which the discrimination is alleged is akin to or relates to those
specified in the constitution. The common denominator of the specified
grounds is ‘that they have been used (or misused) in the past to
categories, marginalised and oppress people who have had, or have been
associated with, these attributes or characteristics’ and ‘have the
potential when manipulated, to demean persons in their inherent

80
As to the meaning of the term ‘independent contractor’, see Chapter 2, para 3.
81
In Whitehead v Woolworths (1999) 20 ILJ 2133 (LC), the court treated the employee as an applicant even
though she had already been offered employment. This decision is probably incorrect.
82
In other words, that their dignity is affected. See Ndudulu v Metrorail- PRASA (Western Cape) (2017) 38 ILJ
2565 (LC), in which a salary difference arising from an error was held not to amount to discrimination. See also
Sethole v Dr Kenneth Kaunda District Municipality [2018] 1 BLLR 74 (LC).
83
Harksen v Lane NO 1998 (1) SA 300 (CC).
humanity and dignity’.84 Employees complaining of discrimination on an
unlisted ground must provide evidence that the act complained of
affected their dignity; injured feelings are insufficient to prove a claim of
discrimination.85 This means that before a claim of alleged unfair
discrimination on any ground other than those specified in section 6 of the
EEA is entertained, the court must satisfied that the discrimination
complained of is indeed proscribed. Grounds like nepotism and ‘cronyism’
may not fall within the listed grounds, but they can certainly be classed as
arbitrary.

The Labour Court has suggested that a refusal to employ persons

belonging to a particular group on outdated and irrational medical
grounds is enough in itself to demean the inherent human dignity of
members of that group.86 So, too, has disqualifying employees on fixed-
term contracts senior posts been found to impair the employees’ dignity. 87
The court has also been prepared to accept in principle that prejudicial
action against an employee for expressing vehement views against extra-
marital affairs could constitute discrimination on the basis of belief. 88
Depriving a manager of some of her functions and denying her salary
increases for refusing to implement a policy in a manner she believed
unlawful, and was in fact found to be unlawful, was held to constitute
discrimination on the basis of conscience. 89 So, too, has paying an
employee less than colleagues performing the same work in other in other
geographical areas been held to amount to discrimination. 90

84
At [48] of the judgement.
85
See, for example, Mothoa v SAPS (2007) 28 ILJ 2019 (LC).
86
IMATU v City of Cape Town (2005) 26 ILJ 1404 (LC).
87
McPherson v KZN (2008) 29 ILJ 674 (LC).
88
Zabala v Gold Reef City Casino [2009] 1 BLLR 94 (LC) (although the court found that the employee was not
dismissed for this reason, but rather for stealing a computer).
89
Motaung v Department of education (2013) 34 ILJ 1199 (LC).
90
Duma v Minister of Correctional Services (2016) 37 ILJ 1135 (LC), although this judgement was overturned on
appeal on the basis that the employee had failed to prove that geographical location was the sole reason she
was paid less than the comparators in other provinces: Minister of Correctional services v Duma (2017) 38 ILJ
2487 (LAC). See also Gamagara Local Municipality v IMATU obo Mzuza: In re IMATU obo Mzuza v Gamagara
Local Municipality (2019) 40 ILJ 2085 (LC).
The LRA also protects people from being discriminated against for
exercising rights conferred by that Act. 91 This form of discrimination,
generally known as ‘victimisation’, may occur as result, for example, of
union membership, or for referring disputes against the employer, or for
striking. Denying a bonus to workers who engaged in a protected strike
has been held to be discriminatory in this sense, provided that the
workers can prove that the bonus was denied for the act of striking, 92 and
not for some legitimate reason.93

7. Specific grounds of discrimination

7.1 Age
The prohibition against age discrimination applies to both youth and
maturity. There are no reported cases in which employees have claimed
discrimination because they were too young, a 28-year-old was found to
have been unfairly discriminated by an employer who restricted job
applicants to those below 25. 94 Most discrimination cases against the
elderly arise from forced retirement, which is discussed elsewhere. 95 In
one case, paying older airline pilots less than their younger counterparts
was ruled unfairly discriminatory, even though the practise was
sanctioned by a collective agreement.96

There is an obvious similarity between the prohibition on age

discrimination contained in the EEA and that rendering dismissal on the
basis of age automatically unfair (see section 187(1) (h), discussed in
chapter 11). The EEA provides that the prohibition on age discrimination
excludes dismissals. But nothing precludes employees from claiming
unfair discrimination under the EEA and for an automatically unfair
dismissal under the LRA in the same action. When it comes to age, the

91
Section 5.
92
As was the case in FAWU v Pets Products (2000) 21 ILJ 100 (LC). See also NUM v Namakwa Sands – a Division
of Anglo Operations (2008) 29 ILJ 2932 (LC).
93
See Ngcobo v Chester Butcheries (2012) 33 ILJ 2932 (LC). On victimisation, see Further Chapter 11, para 2.
94
Swart and Mr Video (1998) 19 ILJ 1315 (CCMA).
95
See Chapter 11, para 7.
96
Jansen Van Vuuren v SAA (2013) 34 ILJ 1749 (LC). Upheld in this regard on appeal: SAA v Jansen Van Vuuren
(2014) 35 ILJ 2744 (LC).
obvious difference between the EEA and the LRA is that the latter Act
provides employers with the defence that the employee had reached an
agreed or normal retirement age, whereas the EEA provides no such
defence.97

7.2 Disability
The disabled are included as beneficiaries of affirmative action under the
EEA, and disability is also listed as a prohibited ground of discrimination.
One case in which a disabled employee has successfully pursed an unfair
discrimination case because he was not treated as an equal to healthy
applicants, involved a diabetic would-be fireman, who was excluded from
consideration for appointment solely because he was diabetic. 98 The court
reached the same conclusion in a later case concerning the same
employer and other fire-fighter who was denied advancement after being
injured on duty.99 In other case, an employee who was disfigured by an
attempted suicide was also granted substantial damages because his
employer told him to stay away from work because he was ‘cosmetically
unacceptable’.100 The Equality Court came to the same conclusion in a
case involving a magistrate who was overlooked for appointment because
of poor eyesight.101

HIV/Aids also falls under this head. The Constitutional Court has ruled
categorically that employees suffering from this condition who are
otherwise physically fit may not be excluded from consideration for
appointment on that ground alone.102

7.3 Political opinion, religion and belief

A person’s belief, and the opinion to which they give expression, are
sacrosanct. Discriminating against employees on the grounds of union
affiliation, which often goes hand in hand with political allegiance, is
forbidden by the LRA. The same applies to discrimination on the grounds
97
See, generally Khan v MMI Holdings (2018) 39 ILJ 1772 (LC).
98
IMATU v City of Cape Town (2005) 26 ILJ 1404 (LC).
99
SAMWU obo Damons v City of Cape Town (2018) 39 ILJ 1812 (LC).
100
Smith v Kit Kat Group (2007) 38 ILJ 483 (LC)
101
Singh v Minister of Justice & Constitutional Development ( SA National Council for the Blind as Amicus
Curiae) (2013) 34 ILJ 2807 (EqC).
102
Hoffmann v SAA (2000) 21 ILJ 2357 (CC)
of party political allegiance,103 and for following genuinely held personal
convictions.104 Employees are also entitled to practice their religions,
though, as with the exercise of all rights in the workplace, adherents of
particular faiths must adapt to the operational needs of their employers. 105
However, employers must reasonably adapt their operational needs if
possible to accommodate the religious convictions of employees. 106

The widespread belief that the wishes of ancestors must be placated by

consulting or training as traditional healers has given rise to controversy.
Guidance on how employers should deal with adherents of that belief has
been given by the LAC in a judgement dealing with the dismissal of an
employee who insisted against the wishes of management on taking leave
for that purpose.107

7.4 Sex, gender and sexual orientation

Employees may not be discriminated against on basis of sex, gender or
sexual orientation. To pay a woman less than a man for doing the same
work or to deny women benefits available to men are clear examples of
sex-based discrimination and are patently indefensible. Issues of gender
and sexual orientation may be more complex from a physical and
psychological point of view, but in this context of labour law there is an
absolute prohibition of discrimination against gays, 108 lesbians,109 and
transsexuals,110 unless the employer is able to prove that sexual
orientation is somehow relevant to the employee’s job, which is unlikely.
However, a woman cannot complain that she is earning less than her male
counterparts unless she can prove connection between the pay difference

103
See, for example, Walters v Transitional Local Council of Port Elizabeth (2000) 21 ILJ 2723 (LC).
104
Naude v MEC, Department of Health, Mpumalanga (2009) 30 ILJ 910 (LC). But see Brink v Legal Aid SA
(2015) 36 ILJ 1020 (LC), In which the applicant claimed he had been denied promotion because he had written
a book expressing controversial views about treatment of HIV/Aids. The court found that the responsible
manager was not even aware that the applicant has expressed such views.
105
See, for example, FAWU v Rainbow Chicken Farms (2000) 21 ILJ 615 (LC) (the right of Muslims to worship on
Eid) and Dlamini v Green Four Security (2006) 27 ILJ 2098 (LC) ( the right of security guards belonging to the
Baptised Nazarenes to go unshaven (but see Mbhele and Fidelity Security Services (2016) 37 ILJ 1935 (CCMA).
106
See TFD Network Africa v Faris (2019) 40 ILJ 326 (LAC), discussed in Chapter 11.
107
Kievits Kroon Country Estate v Mmoledi (2012) 33 ILJ 2812 (LAC).
108
See, Allpass v Mooikloof Equestrian Centre (2011) 32 ILJ 1637 (LC).
109
See, Langemaat v Minister of Safety and Security (1998) 19 ILJ 240 (T).
110
See, Atkins v Datacentrix (2010) 31 ILJ 1130 (LC).
and her sex.111 A pregnant woman is not discriminated against if the
employer forces her to take maternity leave if the work she is performing
is dangerous to her health or that of the child, provided that no
reasonable alternative is available.112

7.5 Language
The Constitution confirms South Africa’s multilingual nature. Theoretically,
therefore, employees are entitled to use any recognised language of their
choice. However, because of the variety of languages used in the country,
employers may reasonably insist on sufficient fluency in a particular
language, usually English. But the emphasis is on whether it is reasonable.
The rejection of an African female teacher in favour of a coloured male
solely on the grounds of the latter’s assumed proficiency in Afrikaans, was
held to be discriminatory against the African teacher because she was
perfectly proficient in that language. 113 On the other hand, where fluency
in the language preferred by the employer is an inherent requirement of
the job, employees cannot complain if they overlooked because they are
unable to express themselves adequately in that language. 114

7.6 Race
Given South Africa’s background, it is understandable that the ground of
discrimination which most frequently generates dispute is race. Employers
are liable for racist treatment of employees by colleagues, even if it
occurs outside working hours and the employer does nothing about it. 115
As appears from the following chapter, the EEA requires employers to
‘affirm’ designated employees, being blacks (including Africans, coloureds

111
SAMWU v Nelson Mandela Bay Municipality (2016) 37 ILJ 1203 (LC).
112
Samancor Chrome (Eastern Chrome Mines) v NUM obo Mahlangu [2019] 1 BLLR 82 (LC).
113
Stokwe v MEC Department of Education Eastern Cape Province (2005) 26 ILJ 927 (LC).
114
See, Stojce v UKZN (2006) 27 ILJ 2696 (LC).
115
Biggar v City of Johannesburg (Emergency Management Services) (2017) 38 ILJ 1806 (LC). Liability does not
extend to discriminatory acts by third parties, such as customers: Shoprite Checkers v Samka (2018) 39 ILJ 2347
(LC).
and Indians), females and the disabled. 116 A number of cases have risen
from complaints by non-designated employees (essentially able bodied
white males) who claim they have been discriminated against when
overlooked for promotion in favour of designated employees. Disputes
have also arisen from claims by designated employees that they have
been overlooked in favour of designated employees from other
designated groups. The following paragraphs deal, first, with claims of
unfair discrimination by non-designated employees and secondly, with
claims by designated employees that they have a right to be ‘affirmed’.
The defence that employees who have been overlooked on grounds of
affirmative action are not unfairly discriminated against, is discussed in
para 7.6.2.

7.6.1 Non-designated employees

On the face of it, white males have little chance of succeeding with unfair
discrimination claims if their employers favour designated employees over
them to achieve equity targets: they were by and large ‘overrepresented’
in many occupations and services, and the purpose of affirmative action is
to reduce the disparity. However, there are limits to the extent that
designated employees may be favoured over white males without unfairly
discriminating against them. Paying designated employees more than
white males performing the same work is one untested example. White
males may also cry foul if an employer overlooks them after equity has
been reached.117 They may also claim to been unfairly discriminated
against if the employer promotes manifestly unqualified designated
employees to posts for which they have applied, when they are manifestly
qualified, or where the employer without equity plan favours a designated
candidate.118 There may be other circumstances, though limited, in which
non-designated employees may claim relief for unfair discrimination, but
these have yet to be tested.119
116
But now limited to South African Citizens by birth or descent or who became citizens after 27 April 1994 by
naturalisation or those who after 26 April 1994 would have been entitled to acquire citizenship by
naturalisation before that date but who were precluded from doing so by apartheid policies.
117
UNISA v Reynhardt (2010) 31 ILJ 2368 (LAC).
118
Gordon v Department of Health: KZN (2008) 29ILJ 2535 (SCA).
119
See, further para 8.1 below.