by Site Admin | Jul 9, 2026 | Discipline & dismissal
Most employers focus their energy on proving why an employee was dismissed, be it for misconduct, incapacity or operational requirements. But at the CCMA and bargaining councils, cases are just as often lost on how the dismissal was carried out, not whether it was justified.
Procedural fairness under the Labour Relations Act and 4 September 2025 Code of Practice: Dismissal requires procedural compliance, it’s 50% of the fairness equation. Commissioners look for a genuinely impartial chairperson, adequate notice of the charges, a real opportunity for the employee to state their case, consistency with how similar past cases were handled, and a sanction proportionate to the offence. A single gap can be fatal to prospects in defending an alleged unfair dismissal, such as a chairperson who was involved in the initial investigation, a prolonged delay in initiating the disciplinary procedure, a notice period too short to prepare a defence, an inconsistent sanction compared to prior similar cases, can be, and often is, enough to overturn an otherwise justified dismissal.
The cost of that gap is real; reinstatement, backpay, legal fees, and management time diverted from the business. And because process failures often repeat across departments and line managers, one bad precedent can multiply risk across an entire organisation.
The fix isn’t more legal review after the fact — it’s building procedural discipline into the process itself from the beginning, before a dismissal ever happens. The 4 September 2025 Code of Practice: Dismissal emphasises the need for a “fair procedure”. In our experience, initial procedural defects are evident in many cases. Such defects cannot be un-done, and result in inevitable risk at CCMA, bargaining council and Labour Court level. Procedural unfairness is irreversible.
Our labour courts have dealt with procedural unfairness extensively. In Johnson & Johnson (Pty) Ltd v CWIU, Froneman DJP dealt with compensation for procedural unfairness – `The compensation for the wrong in failing to give effect to an employee’s right to fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an employer (who breached the right) must pay a… penalty for causing that loss. In the normal course a legal wrong done by one person to another deserves some form of redress”. In a recent LAC case also confirmed that “The key factors in the determination of compensation for procedural unfairness, therefore, are: i) the extent of the deviation from a fair procedure; ii) the employee’s conduct; iii) the employee’s length of service; and iv) the anxiety and hurt caused to the employee as a consequence of the employer not following a fair procedure”.
by Site Admin | Sep 30, 2024 | Discipline & dismissal
In the context of a workplace, an employee is negligent when they fail to exercise the standard of care that can be reasonably expected, which causes actual or potential loss to the employer.
Various investigative questions need to be answered to determine the existence of negligence. For example, would a reasonable person in the particular workplace circumstances, have foreseen the reasonable possibility that their conduct would cause harm to another person or company property? Was it possible for the employee to prevent the harm? Importantly, these tests are to be applied in the context of the specific workplace in question, together with the type of job performed by the employee.
What’s more, workplace negligence is invariably established with specific reference to existing workplace rules, such as standard operating procedures.
The degree of identified negligence will determine whether it is gross or not.
It was held in NUMSA obo Lumka v CCMA & 2 others (Labour Court Case No. PR10/22) that “The test for negligence remains the same – whether negligence, once established, is gross, is a matter of degree, to be determined considering a number of relevant factors. Those factors are inter alia whether the employee is persistently negligent; the seriousness of the act or omission; whether the act or omission is inexcusable; the employee’s awareness of the performance standard required or the procedure to be complied with; the seriousness of the consequences of the act or omission; damages caused and the skills and experience of the employee or the position held by the employee.”
The Labour Court has, since the SCA case of Edcon Ltd v Pillager NO & others (2009) 30 ILJ 2642, reiterated that no evidence is required to be led by an employer related to an irreparable breakdown in a trust relationship, when gross negligence has been proved, as employers are not expected to retain delinquent employees.
As a rule of thumb, depending on the specific circumstances of each case, ‘ordinary’ negligence would justify a written or final warning, whilst gross negligence would warrant dismissal.
by Site Admin | Jun 23, 2022 | Discipline & dismissal
Section 186(1)(e) of the Labour Relations Act defines constructive dismissal to be circumstances in which “an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee”. Put differently, the employee resigns and claims that they were, in effect, unfairly dismissed, as they would not have resigned had it not been for the alleged intolerable employment circumstances created by the employer.
One of the interesting facets of such disputes is that, unlike all other alleged unfair dismissal disputes, the starting point is the rebuttable presumption that the employer did not in fact fashion an intolerable employment relationship, and for this reason, the employee, not the employer, has the burden of proof. Let’s not forget that in the case of all other species of alleged unfair dismissal disputes, the rebuttable presumption at the outset, is that the dismissal was unfair, until the employer proves, if it can, that the dismissal was fair, both procedurally and substantively.
Employees frequently underestimate how exacting the test is in constructive dismissal cases. The CCMA, bargaining councils and our labour courts are not easily swayed by claims of constructive dismissal, with the statistics on the outcome of such disputes confirming this with employees more often than not, being unsuccessful when it comes to claims of constructive dismissal.
The recent Labour Court case in Shoprite Checkers (Pty) Ltd v Prince Nkosi & others [Case no. JR625/20, emphasised just how high the bar is et when it comes to proving constructive dismissal, when in concluded that “by parity of reasoning, intolerability should not be easily reached in a case of constructive dismissal”.
In short, the employee resigned, and claimed constructive dismissal in a dispute referred to the CCMA. The Commissioner found that the employee had successfully proved that he was constructively dismissed. The employer reviewed the arbitration award in favour of the employee on grounds that the Commissioner had erred as hi conclusions were not supported by the evidence on record.
Without going into the nitty gritty of this Labour Court review case, the Judge, amongst other things, quoted the Labour Court judgment in Gold One Limited v Madalani & others [2021] 2 BLLR 198 (LC) which “sanctioned a well-established principle that “ … intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter n obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonizing circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to breaking point”.
This emphasis on the weight of proof required to prove constructive dismissal as similarly addressed in the Constitutional Court judgment handed down earlier this year in Booi v Amathole District Municipality & others (2022) 43 ILJ 91 (CC) – “It is accordingly no surprise that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one. The term ‘intolerable’ implies a level of inbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour … the conclusion of intolerability should not easily be reached”.
The Labour Court judgment in Shoprite summed this up by stating that “by parity of reasoning, intolerability should not be easily reached in a case of constructive dismissal”.
by Site Admin | Nov 16, 2021 | Covid-19
The debates around mandatory Covid-19 workplace vaccination policies are currently the dominant labour relations conundrum. Compulsory workplace vaccination policies – can you, or can’t you?
It’s a hot topic, and everybody has their own view and opinion on the efficacy and wisdom of vaccination, and the extent to which employers have a right to impose mandatory workplace Covid-19 policies. However, regardless of personal opinions, our courts will ultimately determine how employers are to approach workplace Covid-19 vaccination, in light of the 11 June 2021 Consolidated Directive on Occupational Health & Safety Measures in certain workplaces. Make no mistake, we won’t know for sure until we begin to see Constitutional Court judgments on this issue.
In the meantime, employers have decisions to make, which can’t be delayed until Constitutional Court judgments are forthcoming. So, where do we look for clues on the way forward. Aside from the Consolidated Directive on Occupational Health & Safety Measures in certain workplaces, it does no harm to observe how other democracies around the, with similar human rights law, are dealing with this thorny issue.
What we do know is that the CCMA is ‘red-lining’ vaccination related dismissals, which for now, are being adjudicated by selected Senior Commissioners. At the time of writing, our understanding is that there are approximately 13 current, live cases at the CCMA, although expect this number to rapidly increase.
On 1 September 2021, the New Zealand Employment Relations Authority (Christchurch) passed judgment in the case of GF v New Zealand Custom Service [2021] NZERA 382 3138682. In short, the employer had terminated the employee’s employment on grounds of his refusal to be vaccinated, after it had conducted a thorough health and safety assessment. The court held that the employer “had done and had every right to do in law and the prevailing circumstances, was determine the position GF occupied could only be safely undertaken by a vaccinated worker”.
The European Union’s equivalent to the SA Occupational Health & Safety Act is the Safety, Health & Welfare at Work Act (2005) and article 8(1) of the European Convention on Human rights which mirrors many of the human rights found in the Constitution of SA. Importantly, human rights are not absolute in either, meaning that they can be limited when it is reasonable and justifiable to do so.
A study of relevant European case show reveals that in Boffa & others v San Marino (European Court of Human Rights – 26536/95 15) it was acknowledged that that “the interference arising from the compulsory vaccination of the applicant’s children against hepatitis B was justified by one of the legitimate aims enlisted in article 8(2) of the European Convention, namely the need to protect the health of the public and the persons concerned”.
Finally, in Solomakhin v Ukraine (European Court of Human rights – 24429/03 2012) the court recognised the weight which must be attached to public health and the need to control infectious diseases (many say that Covid-19 is not merely infectious, but is in fact contagious). It went on to say that “In the court’s opinion the interference with the applicant’s physical integrity could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region”.
All cases of this nature will be fact-specific, and require evaluation on their own merits.
For further guidance, e-mail us at info@iconlabour.co.za.
by Site Admin | Jul 1, 2021 | Covid-19
The much-anticipated Department of Employment and Labour ‘Direction’ on Covid19 vaccination was Gazetted on 11 June 2021. Mandatory vaccination is permissible; or is it?
Employers across the country are grappling with the decision of whether to make Covid19 vaccination mandatory, ensuring compliance with the 11 June 2021 Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces Gazette. Annexure C of this Gazette is entirely devoted to mandatory Covid19 vaccination (“Guidelines if an Employer Makes Vaccination Mandatory”). Helpful as it is, it does not address the question of dismissal in circumstances where an employee persists in their refusal to be vaccinated, if the employer has adopted a mandatory vaccination policy.
Getting the social partners to reach agreement on the question of workplace vaccination considerations can’t have been easy. In fairness, it is a complex, multifaceted challenge. On the one hand, the Occupational Health and Safety Act compels employers to promote and ensure workplace safety, health and hygiene, which suggests that workplace Covid19 vaccination should routinely be mandatory. Yet, on the other hand, our Constitution provides for key human rights such as the right to equality, dignity, bodily and psychological integrity, freedom of religion, belief and opinion, and fair labour practices; all of which lay the groundwork for the contesting of mandatory workplace Covid19 policies.
So, there we have it. Employers may establish mandatory vaccination policies, or is that may not? Hence the current almost paralysis in employer ranks on the workplace vaccination policies being pondered throughout commerce and industry.
At face value, some industry sectors will have a stronger argument and justification for establishing blanket mandatory workplace vaccination policies than others. For example, most health facilities, in all likelihood, will be able to justify a mandatory vaccination policy given the operational difficulty in applying strict social distancing protocols. The mining sector too should be able to justify a mandatory vaccination policy given the enclosed working environment in mines, other than open cast mines. It is even quite arguable that in the hospitality sector, such as kitchens and housekeeping, mandatory Covid19 vaccination policies should be able to withstand scrutiny.
However, our observations over a wide cross-section of other industry sectors, is that employers would by and large prefer mandatory vaccination policies, but are reluctant to do so for fear of being one of the first test cases on the question of mandatory vaccination policies. Because, make no mistake, there will be a test case, or more likely, a slew of test cases, and no employer is particularly enthusiastic about being a party in such a case.
When all is said, and done, there are three options when it comes to concluding a workplace vaccination policy (1) vaccination is non-mandatory, (2) vaccination is mandatory, or (3) vaccination is mandatory for some employees, but not others.
Section 4 of Annexure C of the Gazette highlights that when contemplating a mandatory vaccination policy “a premium is placed on public health imperatives, the constitutional rights of employees and the efficient operation of the employer’s business”.
An employer’s risk assessment in accordance with sections 8 and 9 of the Occupational Health and Safety Act will largely influence employer decisions regarding mandatory, or non-mandatory workplace Covid19 vaccination policies. If an employer risk assessment concludes that the workplace is an inherently hazardous environment which is incapable of limiting the likelihood of workplace infection, a mandatory Covid19 mandatory workplace policy will be more justifiable than a workplace which can take steps to minimise the likelihood of infection. This, of course, applies to both employees and any other third parties who may access the workplace.
On a practical level, the workplace risk assessment would focus on the ability to maintain social distancing, ventilation, sanitising protocols, the staggering of working hours and meal breaks, hygiene protocols and the like.
It is quite possible that an employer makes Covid19 vaccination mandatory for some employees, but not for others. For example, given the ergonomics of many workplaces, there may be a likelihood that infection will more likely impact on the health of employees, or others, in one area of a workplace, more than another.
Sooner or later, there will be dismissals for refusal to be vaccinated in workplaces with mandatory Covid19 vaccination policies; it’s inevitable. It’s clear from annexure C of the Gazette that any pre-dismissal procedure will need to include an employer evaluation of the employee’s grounds for refusal, and an assessment of whether it was possible to accommodate the employee in a position that does not require the employee to be vaccinated. If not, dismissal on grounds of refusal to be vaccinated in a workplace with a mandatory workplace Covid 19 policy will likely amount to dismissal on grounds of either misconduct (refusal to obey a lawful and reasonable instruction), or potentially on grounds of incapacity, in that without being vaccinated, the employee does not have the capacity to meet their employment obligations in not agreeing to be vaccinated.
