RECENT DEVELOPMENTS IN S.A. EMPLOYMENT LAW

Court: Labour Court of South Africa, Durban Judge: Seery AJ Date of Delivery: 26 January 2026 Factual Matrix The plaintiffs alleged unfair discrimination in that they were paid less than comparator employees performing the same or work of equal value. They pleaded that the defendant's conduct in maintaining the disparity constituted unfair discrimination on an "arbitrary ground" impacting their dignity. The defendant excepted to the Statement of Claim, alleging it failed to identify any listed or unlisted ground of discrimination. Reasoning for the Finding "[5] On a reading of the SOC in toto the alleged arbitrary ground relied upon is not identified. In order for the defendant to be placed in a position to properly defend the action, what must be pleaded to support an allegation of discrimination is a ground of discrimination." [para 5] "[6] In Naidoo and Others v Parliament of the Republic of South Africa the court found that to establish discrimination a...

Court: Labour Court of South Africa, Port Elizabeth Judge: Lallie J Date of Delivery: 10 February 2026 Factual Matrix Thungela Operations contemplated retrenching employees from its Goedehoop and Isibonelo collieries. During consultation under section 189A of the LRA, the employer undertook to place certain employees in care and maintenance and reclamation structures. Appointment letters were issued in August 2025. In November 2025, the employer cancelled these undertakings, and the affected employees (including the individual applicants) were included in the retrenchment pool. Retrenchment notices were issued on 3 December 2025. NUM launched a section 189A(13) application on 23 January 2026 (21 days late), seeking reinstatement pending fair consultation. Reasoning for the Finding "[6] The delay is about 3 weeks. The respondent submitted that in light of the purpose the provisions of section 189A(13) were intended to serve, the 3 weeks' delay is excessive because section 189A(...

Court: Labour Court of South Africa, Johannesburg Judge: Gandidze J Date of Delivery: 16 February 2026 Factual Matrix Two employees of Denel SOC Ltd, employed as Category Specialists in Procurement, were suspended and faced a disciplinary hearing. They were notified that external attorneys (MNS Attorneys and MBA Inc Attorneys) would initiate and chair the hearing. NUMSA, representing the employees, contended that the Disciplinary Code, incorporated into their employment contracts, did not permit external chairpersons or initiators. The employer refused to provide an undertaking to appoint internal persons. The applicants sought urgent declaratory and interdictory relief. Reasoning for the Finding "[13] I disagree that an alleged breach of contract claim is a right under the Labour Relations Act, as submitted by the respondent... 'if non-compliance with the LRA is not relied on, an employee can pursue a contractual claim if a contractual remedy is sought.'" [para 13, q...

Court: Labour Court of South Africa, Durban Judge: Seery AJ Date of Delivery: 28 January 2026 Factual Matrix The applicant referred an unfair labour practice dispute concerning a "shift agreement" and "standby policy" and claiming payment of allowances. The arbitrator found the bargaining council lacked jurisdiction. The applicant later referred the same dispute under a new case number, which was also found to lack jurisdiction. The applicant then launched a review application of the first award. Subsequently, on 9 June 2025, the applicant and respondent concluded a Voluntary Retrenchment Agreement (VRA) containing full and final settlement clauses waiving all claims relating to employment. Reasoning for the Finding "[8] Certain clauses of the agreement...have a direct bearing on the proceedings before this court: 8.2 Clause 16 – FULL AND FINAL SETTLEMENT. 8.4 Clause 16.2 – the payments made and the benefits afforded to the applicant in terms of the agreement ...

Court: Labour Court of South Africa, Cape Town Judge: May AJ Date of Delivery: 19 February 2026 Factual Matrix Fortuin, an Administrative Officer in Library and Information Services, was dismissed for dishonesty after allegedly answering "no" when asked in a promotion interview whether she had ever been convicted at a disciplinary hearing, despite having been found guilty of serious misconduct in 2019. She maintained she had disclosed her record. The HR practitioner who conducted the interview testified she recorded "no" as the answer. The arbitrator preferred the employer's version and upheld the dismissal as substantively and procedurally fair. The applicant sought review. Reasoning for the Finding "[12] In assessing the conduct of the arbitrator, the Court is enjoined to ask: 12.1 In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to h...

Court: Labour Court of South Africa, Cape Town Judge: Lagrange J Date of Delivery: 20 February 2026 Factual Matrix The applicant was successful in an interview for promotion to Head of Communications (Development Management) conducted via Skype. Months later, he faced charges of dishonesty for answering "no" when asked if he had ever been convicted of disciplinary action or was currently facing such action, despite having a prior disciplinary record (including two findings of plagiarism). The crux of his defence was that he only answered the second part of the two-part question (regarding current disciplinary proceedings) and either did not hear or did not understand the first part. He was dismissed. The arbitrator upheld the dismissal. The applicant sought review. Reasoning for the Finding "[15] The arbitrator considered that the question was phrased in plain language, even if it comprised two elements, and the answer clearly could have materially influenced the outcome...

Court: Labour Court of South Africa, Johannesburg Judge: Munsamy AJ Date of Delivery: 13 February 2026 Factual Matrix The Third Respondent, Bertha Hampu Maleka, Chief Financial Officer of the Department of Health: North West, was placed on precautionary suspension on 8 May 2020. The employer's SMS Handbook limited precautionary suspension to 60 days, with extension only permissible if a disciplinary hearing was convened within that period and the chairperson extended the suspension. No hearing was convened within 60 days. The suspension was extended by an administrator's letter, not by a chairperson. Maleka referred an unfair labour practice dispute. The arbitrator found the continued suspension procedurally and substantively unfair, ordered its upliftment, and awarded three months' compensation. The Department sought review. Reasoning for the Finding "[16] The review(Part B) is essentially a review of a jurisdictional point. The applicable test to determine this issue...

Court: Labour Court of South Africa, Cape Town Judge: Mapoma AJ Date of Delivery: 19 February 2026 Factual Matrix Mlungwana, an administrative clerk at the City's Drivers Licence Testing Centre, was dismissed for gross dishonesty after claiming two hours of overtime (16h00–18h00) when he had actually left at 17h46 (14 minutes short). His supervisor, Tandi Phadi, left at the same time and also misrepresented her time by 9 minutes, but was not charged. Mlungwana referred an unfair dismissal dispute to the bargaining council. The arbitrator found the dismissal procedurally fair but substantively unfair, ordering reinstatement without back pay. The City sought review of the substantive fairness finding. Reasoning for the Finding "[20] In the work context, the principle of consistency postulates that when fostering discipline like must be treated alike unless the employer can justify the differentiation of treatment." [para 20] "[21] In Cape Town City Council v Masitho an...

Court: Labour Appeal Court of South Africa, Johannesburg Coram: Nkutha-Nkontwana JA, Chetty AJA, Tokota AJA Date of Delivery: 5 February 2026 Factual Matrix The appellant, Phahlane Johannes Kgomotso, joined the SAPS in 1985 and was promoted to Lieutenant General in 2007. He was appointed Acting National Commissioner by the President on 14 October 2015. A dispute arose concerning a procurement contract (Bid No. 19/1/9/1/187 TR[13]) for panoramic camera equipment awarded to Ethemba Forensic Group. The appellant, in his capacity as Divisional Commissioner: Forensic Services, disputed the award and refused to place orders. Ethemba subsequently sued the SAPS for breach of contract, resulting in a settlement of R24,494,080.65. The appellant was suspended by the Minister of Police on 1 June 2017 and dismissed on 7 August 2020 following a disciplinary enquiry conducted under Regulation 9 of the SAPS Discipline Regulations. He referred an unfair dismissal dispute to the Safety and Security Barg...