RECENT DEVELOPMENTS IN S.A. EMPLOYMENT LAW

Citation: [2026] ZALCCT 41 Presiding Judge: De Kock AJ Court: Labour Court of South Africa, Cape Town Nature of the Application [1] This matter came before the Court as a review application wherein the Applicant sought the Jurisdiction Ruling by the Second Respondent (Commissioner R Olivier), dated 2 March 2021, to be reviewed and set aside. Factual Matrix and Jurisdictional Ruling [4]–[5] Paragraphs 29 and 31 of the ruling stated: "[4] Paragraph 31 of the ruling states the following: 'I find that the material and fraudulent misrepresentation in this matter where Mr Kwayiso, as the applicant's representative, acted as her representative without having locus standi vitiated the whole of the arbitration proceedings and the matter is therefore null and void.' [5] This Court was also referred to paragraph 29 of the ruling which states as follows: 'The applicant submitted that even should costs be considered it should only be considered when the arbitration is co...

Citation: [2026] ZALCJHB 53 Presiding Judge: Mahalelo AJ Court: Labour Court of South Africa, Johannesburg Nature of the Application [1] This was an application for leave to appeal against the whole of this Court's judgment and order delivered on 30 December 2025, in which the Court found that the dismissal of the applicant by the respondent for operational reasons was unfair and ordered reinstatement. Test for Leave to Appeal [4]–[5] Section 17(1) of the Superior Courts Act 10 of 2013 was applied: "[4] Section 17(1) of the Superior Court Act deals with the relief of leave to appeal. In terms thereof, leave to appeal may only be granted (a) where a judge/s are of the opinion that (a) the appeal 'would' not 'may', have reasonable prospects of success (b) there are some compelling reasons why the appeal should be heard, including the existence of conflicting judgments on the matter under consideration. [5] It has been confirmed that the use of the words ...

Citation: [2026] ZALCPE 9 Presiding Judge: Lagrange J Court: Labour Court of South Africa at Gqeberha (Port Elizabeth) Nature of the Application [1] This matter concerned a special plea raised by the defendant, Motorvia, to a referral of an unfair dismissal claim for alleged participation in strike action. The central question was whether a settlement agreement concluded on 2 March 2021 precluded the prosecution of a subsequent unfair dismissal dispute. Factual Matrix [2] The dispute arose during March and April 2020 amidst the implementation of 'lockdown' regulations under the Covid-19 pandemic. The company contended that employees had embarked on unprotected strike action on the eve of the first severe lockdown regulations at the end of March 2020. [3] When work was to resume at the end of May 2020, the 32 plaintiffs claimed they were prevented from returning to work. Initially, they treated their exclusion as a dismissal and referred an unfair dismissal dispute to t...

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, Johannesburg Judge: Viljoen AJ Date of Delivery: 13 February 2026 Factual Matrix The individual applicants, employed as Agricultural Advisors and Agricultural Training Officers by the Department of Agriculture, Land Reform and Rural Development, claimed entitlement to translation to the Occupational Specific Dispensation (OSD) for "Scientists" under GPSSBC Resolution 3 of 2009. They possessed science degrees and were registered with SACNASP. The Department refused translation, contending their posts were for extension services, not scientific research involving peer-reviewed publication. The arbitrator dismissed the claim. The applicants sought review. Reasoning for the Finding "[18] The factual evidence of what the Applicants actually do was not disputed in cross-examination...In terms of the rule in Browne v Dunn, that factual evidence must therefore be accepted." [para 18] "[19] Having not disputed the description of the ...

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...