Labour Dispute Resolution - Exhaustive Study Guide 2026

Gawie le Roux Institute of Law: General Information and Lecturer Profile

• Institute Status: The Gawie le Roux Institute of Law is an LPC-accredited private provider of high-quality legal training for attorneys, candidate attorneys, and legal support staff. It has provided uninterrupted professional training for $31$ years.

• Core Values: Quality, Reliability, Practical, Sophisticated, Accurate, and Committed.

• Course Offerings:     * Attorneys' admission exams (Conveyancing and Notarial exams).     * Workshops for Conveyancing and Notarial practice.     * LPC-accredited Advanced trial advocacy and Practical conveyancing.     * Webinars on property sales, sectional titles, and trusts.     * General modules on Legal practice, South African law, and Practical legal skills.     * Specialised courses: Conveyancing for secretaries, Civil litigation, and Debt collection.

• Lecturer Profile: Dr Adriette Dekker     * Occupations: Freelance academic and lecturer; specialized in Labour law, Alternative dispute resolution (ADR), and Social security law.     * Experience: Junior lecturer at UP ($1993$-$1995$); Full professor at UNISA ($2003$-$2014$); Contract lecturer at UJ and UNISA. Promoted $5$ LLD students at UNISA.     * Practice: Admitted as an attorney in $1998$; practiced for $13$ years. Also a conveyancer and notary public of the High Court.     * Qualifications: BLC (cum laude), LLB (UP), Advanced Diploma in Labour Law (UJ), LLM (UNISA), LLD (Labour and Social Security Law, UNISA), Certificate in ADR (cum laude, AFSA/UP).     * Selected Published Works:         * Labour Law Rules! (Siber Ink) 4th Edition (Juta $2021$).         * 'Informal Social Security' in Social Security: A Legal Analysis (LexisNexis $2003$).         * 'Other Legislation Affecting Labour Law' in Essential Labour Law 5th Edition ($2009$).

Course Structure and Ethics: Labour Dispute Resolution

• Subject Components:     * Lectures: Presentations by experts to explain and discuss study material. Duration: $12$ hours.     * Homework: Preparation, further reading of notes, articles, and court cases. Duration: $24$ hours.     * Total Time Allocation: $36$ hours (out of $400$ notional PVT hours).

• Presention: Conducted online via virtual classrooms or recordings.

• Assessment: A multiple-choice question (MCQ) test totaling $50$ marks.

• Pass Requirements:     1. Attendance of all lectures.     2. Achieving a mark of $50 \%$ or more in the assessment.

• Ethical Use of Notes: Materials are for personal use only. Sharing with non-purchasers or presenting content as original work is prohibited and constitutes copyright infringement.

Background and Overview of Labour Law (Chapter 1)

• Synonyms: Employment law, workplace law, or industrial relations law.

• Objective: To balance fairness and productivity, weighing the interests of business against labour while providing tools for dispute resolution.

• Divisions: Labour law is categorized into Individual (employer-employee relationship) and Collective (union-employer relationship) labour law.

• Sources: Aligned with the Constitution and the International Labour Organisation (ILO).

The Constitution and Core Legislation (Chapter 2)

• Section 23 Rights (The Cornerstone):     * Section $23(1)$: Everyone has the right to fair labour practices.     * Every worker may form/join a trade union, participate in programs, and strike.     * Every employer may form/join an employer's organisation.     * Trade unions and employers' organisations may determine administration, organize, and form federations.     * Both parties have the right to engage in collective bargaining.     * Note on Lock-outs: Employers do not have a constitutional right to lock out but have 'recourse' to it under the LRA.

• Jurisdiction: Labour disputes must be pursued in specialized forums (CCMA, Labour Court, Labour Appeal Court) rather than high courts or as common law breaches.     * Chirwa v Transnet [2007] ZACC 23: Established that public servant dismissals are labour matters, not administrative actions under PAJA.

• Illegal and Unlawful Workers: The term 'everyone' extends protection to those without valid contracts.     * Kylie v CCMA (2010): Sex workers are entitled to fair labour practice protection despite the illegality of the work.     * Discovery Health Ltd v CCMA (2008): An employment 'relationship' exists even without a valid work permit; the CCMA has jurisdiction.     * S v Van Rooyen (2002): Magistrates, though independent, rely on Section $23$ protection.     * Universal Church of the Kingdom of God v Myeni (2015): Devotional service is not employment; recourse is Section $23$ only.

• Core Statutes:     1. Labour Relations Act 66 of 1995 (LRA): Collective bargaining, CCMA/Courts, fair dismissals, business transfers.     2. Basic Conditions of Employment Act 75 of 1997 (BCEA): Minimum terms, prohibits child/forced labour.     3. Employment Equity Act 55 of 1998 (EEA): Prevents discrimination, regulates affirmative action.     4. Other acts: Unemployment Insurance Act ($UIA$), Skills Development Act, Occupational Health and Safety Act ($OHSA$), Compensation for Occupational Injuries and Diseases Act ($COIDA$).

Specialised Labour Dispute Resolution Bodies (Chapter 3)

• CCMA: Independent juristic person. Resolves disputes via conciliation; arbitrates if conciliation fails and as required by the LRA.

• Labour Court (LC): Court of law and equity with status equal to a High Court.     * Exclusive jurisdiction over labour matters.     * Can grant interim relief, interdicts, compliance orders, compensation, and review arbitration awards under Section $145$.     * Interdict Procedure (e.g., Unprotected Strikes):         1. File Notice of Motion (Form $4$) and founding affidavit.         2. Respondent has $10$ days to file a notice of opposition and answering affidavit.         3. Applicant can file a replying affidavit within $5$ days.     * Restraint of Trade (Rule 39): Requires four sets of affidavits ($7$, $5$, $5$, and $5$ days respectively).     * Urgency: Requires a 'certificate of urgency'.

• Labour Appeal Court (LAC): Final court of appeal for LC judgments; status equal to the Supreme Court of Appeal.

Common Law and the Employment Relationship (Chapter 5)

• Contract Validity: Requires serious intention, capacity, physical possibility, legality, and formalities.

• Essential Elements (Essentialia): Voluntary agreement, specific/implied duties, employer control, definite/indefinite period, and remuneration.

• Employer Duties: Remuneration, providing work, safe conditions, and fair dealing.

• Employee Duties: Rendering services, competence/diligence, obeying instructions, and acting in good faith (fiduciary duty).

• Vicarious Liability: Employer is liable for the employee's wrongful acts ($delicts$) committed during the course and scope of employment.     * EEA Section 60: Statutory vicarious liability for discriminatory acts unless the employer took immediate steps to eliminate the conduct.

• Restraint of Trade: Reasonable only if it protects a legitimate interest (trade secrets, client connections) and isn't contrary to public policy (Magna Alloys).     * Onus of proof: On the employee to prove the restraint is unreasonable.     * Criteria (Basson v Chilwan): Protectable interest, importance of interest vs employee's unemployment, and public policy.     * Transferability (Section 197): Restraints only transfer if the 'goodwill' of the business is transferred (Securicor [2005]). If a new contract supersedes the old one, the restraint must be specifically ceded to be enforceable (Avis Southern Africa [2024]).

Identification of the Employee (Chapter 6)

• Section 213 Definition: Excludes independent contractors; includes anyone assisting in carrying on a business for remuneration.

• Tests for Employment:     * Dominant Impression Test: Primary test looking at all relationship aspects.     * Reality Test (Workforce Group): Substance over form.

• Legislative Presumption (LRA Section 200A / BCEA Section 83A): Presumed an employee if earning below the threshold ($R115\,572$ in older codes) and ONE of these factors exists:     1. Manner of work subject to control.     2. Hours subject to control.     3. Integration into the organization.     4. Worked an average of $40$ hours per month over $3$ months.     5. Economically dependent.     6. Provided with tools of trade.     7. Services rendered to only one person.

• Start Date: Wyeth SA v Manqele: A person is an employee even if they have only signed a contract to start at a future date.

Non-Standard Employees (Chapter 7)

• Categories:     1. Fixed-term: Terminates on a specific date, project completion, or event. Prohibited for more than $3$ months unless there is a justifiable reason (e.g., student training, seasonal work, volume increase < $12$ months).     2. Temporary (TES/Labour Broker): Employee paid by broker but works for a client. Forfeits TES status after $3$ months; the client becomes the sole employer (Assign Services [2018]).     3. Part-time: Works fewer hours than comparable full-time staff. Entitled to non-discriminatory treatment regarding training and vacancies.

Minimum Terms of Employment (Chapter 8 - BCEA)

• Working Time:     * Max ordinary hours: $45$ per week; $9$ per day ($5$-day week) or $8$ per day ($>5$-day week).     * Meal intervals: $1$ hour after $5$ hours work.     * Night work ($18:00$ to $06:00$): Requires agreement, allowance, and transport.     * Overtime: Max $12$ hours total per day; max $10$ hours overtime per week. Paid at $1\frac{1}{2} \times$ rate. Sunday/Public Holiday pay is double.

• Leave:     * Annual: Minimum $21$ consecutive days paid.     * Sick: $3$-year cycle; entitlement equals days worked in a $6$-week period.     * Family Responsibility: $3$ days (paid) if child is sick or relative dies.     * Parental Leave (Post-Van Wyk [2025]): The Constitutional Court unified pregnancy-related leave. Aggregate entitlement: $4$ months and $10$ consecutive days. Parents may share the leave. Single parents get $4$ months total. Includes biological, adoptive, and commissioning parents.

• Notice Periods:     * < $6$ months service: $1$ week notice.     * $6$ to $12$ months service: $2$ weeks notice.     * > $12$ months service: $4$ weeks notice.

Unfair Labour Practices (Chapter 9)

• Definition (Section 186(2)): A closed list involving:     1. Promotion, demotion, probation, or training.     2. Provision of benefits.     3. Unfair suspension or disciplinary action short of dismissal.     4. Refusal to reinstate under agreement.     5. Occupational detriment under Protected Disclosures Act (PDA).

• Suspension:     * Precautionary: Paid, used for investigation. No absolute right to a hearing before suspension (Long v SAB).     * Punitive: Unpaid, used as a penalty after a fair process.

• Whistle-blowers: Protected from retribution. Dismissal for a protected disclosure is 'automatically unfair'.

Discipline and Dismissal (Chapter 10)

• Burden of Proof: Employee proves dismissal exists; employer proves it was substantively and procedurally fair (Section $188(1)$).

• Definition of Dismissal: Includes termination with/without notice, failure to renew fixed-term contract (if expectation exists), refusal to allow return from maternity leave, selective re-employment, and constructive dismissal.

• Automatic Unfair Dismissals (Section 187): Reasons include strike participation, pregnancy, discrimination, business transfer, or whistleblowing. Max compensation: $24$ months' remuneration.

• Misconduct: Requires a valid rule, awareness of the rule, and consistency.     * Desertion: Absence is not a resignation; the employer must hold a hearing in the employee's absence to terminate legally.

• Incapacity: Poor performance or ill health. Probationary employees can be dismissed for less compelling reasons.

• Operational Reasons (Retrenchment):     * Section 189: Small scale.     * Section 189A: Large scale (facilitator may be appointed; $60$-day consultation period).     * Majoritarianism: Employers consult majority unions; individiual consultation is not required (AMCU v Royal Bafokeng).     * Notice (Section 189(3)): Must invite consultation and disclose reasons, alternatives, numbers affected, selection method (e.g., LIFO), and severance pay ($1$ week per year of service).

Dispute Resolution and Review (Chapter 11)

• Prescription: Conciliation must be referred within $30$ days of dismissal (or $90$ days for unfair labour practice).

• Review Test (Sidumo): Is the award one that a reasonable decision-maker could not have reached?

• Gross Irregularity (Herholdt): Arbitrator misconceived the inquiry or arrived at an unreasonable result.

Collective Labour Law (Chapter 13)

• Union Security Arrangements:     * Agency Shop (Section 25): Majority union + employer. Non-members pay a fee but don't join. Funds must not go to political parties.     * Closed Shop (Section 26): Majority union + employer. All covered employees must join or face dismissal. Requires a ballot where $2/3$ ($\frac{2}{3}$) of voters favor it.

• Organisational Rights:     * Access (s12), Stop Orders (s13), Office Bearer Leave (s15): Available to 'sufficiently representative' unions.     * Shop Stewards (s14), Disclosure of Info (s16): Available only to 'majority' unions.

• Protected Strikes: Requirements:     1. Match the definition of a strike (concerted refusal to work for a collective purpose).     2. Ballot held.     3. Referred to CCMA/Council ($30$ days passed or certificate of non-resolution).     4. $48$ hours written notice to the employer.

• Common Purpose Doctrine: Presence at a violent strike scene is not enough for assault liability without individual proof; however, it may prove participation in an unprotected strike (Marley Pipe Systems).

• Lock-outs:     * Defensive: Response to a strike; replacement labour allowed.     * Offensive: Initiated by the employer; replacement labour prohibited.

Social Insurance and Safety (Chapters 15 - 17)

• COIDA (Occupational Injuries): No-fault system. Delictual claims against employers are barred (Section $35$).     * Exclusion: Malicious intentional acts by coworkers for personal reasons (Twalo v Minister of Safety).     * Domestic workers included after Mahlangu [2020].

• OHSA (Health and Safety): 'Reasonably practicable' standard. Report fatalities and major incidents (explosions, fires) to the Department of Employment and Labour.

• UIF (Unemployment): Contribution of $1 \% \text{ by employer} + 1 \% \text{ by employee}$. Benefits include maternity, death, illness, and parental support. Claims must have at least $13$ weeks of contributions.

Self-Assessment Questions for Reflection

1. Does inflexible labour legislation hamper economic growth?

2. Is Section $60$ of the EEA a form of statutory vicarious liability?

3. Would a restraint clause covering the car wrapping industry in Gauteng for four months be enforceable?

4. Can a client request TES employees to apply for permanent posts after the $3$-month deeming provision applies?

5. Is ten days' unpaid parental leave better than three days' paid family responsibility leave?

6. Why does the LRA omit remedies for employers against employee unfair labour practices?