RECENT DEVELOPMENTS IN S.A. EMPLOYMENT LAW

Citation: [2026] ZALCJHB 49 Presiding Judge: Horn AJ Court: Labour Court of South Africa, Johannesburg Nature of the Application [1] This was an application in which the applicant sought to show good cause why a review application ought to be retrieved from the archive and/or reinstated. Factual Matrix [6]–[10] The employees were dismissed following allegations that they misappropriated funds from admission of guilt fines paid by suspects arrested during the COVID-19 lockdown. The suspects paid R2,500 each but received receipts for R1,000 only. The employees contended the applicable fine was R1,000 for failing to confine, not for selling non-essential goods. [9] On 15 October 2021, the commissioner issued an arbitration award finding the dismissals substantively unfair and ordering retrospective reinstatement. [11]–[25] The review application was filed approximately six and a half months late. The record of proceedings remained fatally incomplete at the time of the reinstatem...

Citation: [2026] ZALCD 5 Presiding Judge: Maeso AJ Court: Labour Court of South Africa, Durban Nature of the Application [1] This was an application to review and set aside the award issued by the second respondent (Commissioner Ntombizonke Mbili) in terms of section 145 of the Labour Relations Act 66 of 1995. Factual Matrix [3]–[7] Mr Toffie and Mr Lettman were dismissed on 4 November 2022 after failing a random drug test. Mr Toffie tested positive for THC, cocaine and amphetamine; Mr Lettman tested positive for heroin/morphine and amphetamines. Mr Lettman operated a laser machine and engraving machine requiring close concentration; Mr Toffie operated heavy machinery as a forklift driver lifting loads of 200–500 kilograms. The applicant maintained a zero-tolerance policy regarding narcotics in the workplace. [8]–[9] Prior to the internal enquiry, Mr Toffie pleaded guilty to being under the influence of an intoxicating substance. Mr Lettman pleaded not guilty and pro...

Citation: [2026] ZALCJHB 56 Presiding Judge: Tshisevhe AJ Court: Labour Court of South Africa, Johannesburg Nature of the Application [1] This was an application where the Applicant sought compensation after he was subjected to an occupational detriment for making a protected disclosure in terms of sections 6 and 9 of the Protected Disclosures Act 26 of 2000 (the PDA). Factual Matrix [6]–[14] The Applicant, employed as Producer Marketing since 2021, applied for a position of Events Manager advertised on 27 September 2023 but was not shortlisted. On 11 October 2023, he was told he did not qualify as he only had 2 years of relevant experience. He took his CV to Ms Kathy Govender, who agreed he qualified but indicated that Mr Gareth Kaschule, the Regional Marketing Manager, did not want him appointed as he preferred someone with Theatre experience. [9]–[12] On 21 December 2023, the Applicant lodged a grievance against Mr Kaschule for unfair labour practice. At the grievance heari...

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...