On Thursday, 19 March 2026, we hosted a webinar on the latest cases impacting the employment law landscape in South Africa. Please click here to access the recording. Citations and mini-summaries of the cases discussed, together with key takeaways, are set out below.
Unfair discrimination
- Eskom Holdings SOC Ltd (Peaking Power Station) v Solidarity obo Erasmus (CA13/2024) [2025] ZALAC 55 (5 November 2025)
Appeal – unfair discrimination claim – race and gender – white male employee applied for promotion to senior post – staff requisition form was completed indicating a white male was to be appointed, but EE Assigned Manager recommended that preferably an African male or female of all races should be considered – employee shortlisted, interviewed, but ultimately not appointed – pipelining practice – employment equity measures designed to ensure that designated groups are equitably represented without imposing rigid quotas – pipeline concept was a known and rational career pathing initiative – while not mentioned in EE plan, the EE plan was not challenged – legitimate restitution measures targeting historically disadvantaged groups and promoting substantive equality – employee was shortlisted and interviewed while employer knew he was a white male, and testimony that he would not have been shortlisted had his race been known was opportunistic – recruitment process did not violate rights – appeal upheld.
Key takeaways: (1) In terms of the Employment Equity Act, 1998 (EEA), designated employers are required to implement affirmative action measures in order to ensure that suitably qualified people from designated groups are equitably represented in all occupational levels in the workplace. The requirement to take affirmative action measures, however, does not require an employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups. When it comes to the promotion process, if an employer were to completely exclude people who are from non-designated groups from being shortlisted for particular positions, this could be found to be an absolute barrier, and an employer may be at risk of a finding of unfair discrimination. (2) The Labour Appeal Court (LAC) in this case found that the employer’s pipelining practice – whereby preference is given to candidates from under-represented designated groups in order to build a pipeline towards senior management – was a rational career pathing initiative to develop persons from designated groups towards taking up positions at senior management level and did not constitute an absolute barrier. However, we note that the evidence was that the appointment of the employee would not adversely affect the EE targets at that level. When considering appointments, each level’s targets are what are relevant, not the level above. It is for this reason that more aggressive targets are often set at the more junior levels. The LAC did not interrogate the targets at the different levels in order to ascertain whether the pipeline was appropriately achieved. (3) The fact that the pipelining practice was not documented in the company’s EE plan did not render it invalid, as it was accepted as being a known and accepted part of the company’s recruitment process. Notwithstanding this finding, designated employers would be well-advised to ensure that their affirmative action measures, including those relating to recruitment practices, are expressly included in their EE Plans and that internal stakeholders who are involved in recruitment understand and apply the relevant employment equity requirements.
The judgment is available here.
Constructive dismissal
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Maleka v Boyce N.O. and Others (CCT 175/23) [2026] ZACC 7 (24 February 2026)
Constructive dismissal in terms of section 186(1)(e) of the Labour Relations Act, 1995 (LRA) – demotion – unilateral change in reporting line – resignation – threshold to establish intolerability is high – no reduction in title, responsibilities, remuneration or position – employee did not accept the change and it had not yet taken effect – no evidence of hostile behaviour or oppressive conditions – resignation driven by dissatisfaction with restructuring rather than by conditions rendered unendurable by employer conduct – application refused.
Key takeaways: (1) Employees may not rely on a future or anticipated state of intolerability that has not yet materialised to claim a constructive dismissal, especially where there is no evidence to demonstrate that working conditions would, in fact, have become intolerable. (2) Employees are generally required to exhaust internal grievance mechanisms before resigning and claiming a constructive dismissal. A mere lack of confidence in the grievance process is insufficient to bypass it. (3) The threshold for constructive dismissal is high: the employee must not just suffer difficult or unpleasant conditions, these must objectively be unendurable or agonising; the employer must be the perpetrator; and the conditions must bring tolerance to a breaking point.
The judgment is available here.
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Lewis v Commission for Conciliation, Mediation and Arbitration and Others (C302/2024) [2025] ZALCCT 117 (25 November 2025)
Review application – constructive dismissal – commissioner finding that employee had not been constructively dismissed – intolerable conditions – resignation – employer’s handling of medical leave – received a valid medical certificate and a supporting letter from doctor – accused employee of abusing sick leave – threatened disciplinary action – withheld remuneration for sick leave without following its own policies – reversal from initial acceptance to hostility and accusation breached implied term of mutual trust and confidence – employee was constructively dismissed – dismissal was unfair – award reviewed and set aside – three months’ compensation awarded.
Key takeaways: (1) Constructive dismissal remains a high threshold and is not easily established. Mere unhappiness is not enough, something more is required. And that something more is conduct that destroys the relationship of trust and confidence. In this case, where there were circumstances that revealed a gradual deterioration of the work relationship between the parties, the decisive factor that established a constructive dismissal was the employer’s handling of the employee’s sick leave.  The Court found that the employer’s conduct in accusing the employee of malingering and abusing sick leave, rejecting a valid medical certificate without rational basis, failing to pursue its own policies and contractual mechanisms for verification, and ultimately withholding her salary after initially confirming that her leave would be fully paid, constituted a breach of the implied term of mutual trust and confidence. (2) Employers are entitled to make difficult operational decisions, even where these adversely affect employees. However, this case highlights the central importance of trust in the employment relationship. Where an employer responds to an employee’s conduct with suspicion, accusation, and inconsistency, particularly in the absence of evidence, it risks fundamentally breaching that trust, which may render a subsequent resignation to be a constructive dismissal.
The judgment is available here.
Unlawful competition / use of confidential information
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Zulu Nyala Game Ranch (Pty) Ltd v Beukes and Another (2025/174684) [2025] ZAKZDHC 87 (10 December 2025)
Urgent interdict application – unlawful competition – misuse of confidential information and personal information – Protection of Personal Information Act 4 of 2013 (POPIA) – non-compliance with contractual confidentiality obligations after termination of employment – requirements of confidential information – acquisition and use of competitor’s confidential information is contra bonos mores and therefore prima facie unlawful where it is likely to infringe an applicant’s goodwill – Court applying springboard doctrine to prevent respondents from gaining unfair competitive head start – distinguished from restraint of trade, with Court emphasising that interdict targeted misuse of information rather than prohibiting employment in industry – respondents interdicted from using, distributing or copying confidential information and from contacting or soliciting customers – respondents directed to delete and destroy all confidential and personal information and return hard copy documents – costs awarded against respondents.
Key takeaways: (1) In order for information to be considered ‘confidential’, three requirements must be met: (i) the information must be capable of application in a particular trade or industry; (ii) the information must be secret ( ie not public property/knowledge); and (iii) the information must, objectively viewed, be of economic or business value to the applicant. (2) Where a former employer seeks to enforce confidentiality obligations in an employment contract by way of an interdict (and not a claim for damages), damage or fault on the part of the former employee does not need to be proven; the unlawfulness of the conduct is sufficient. Unlawfulness is determined by reference to the public policy / boni mores yardstick. In this regard, the acquisition and use of a competitor’s confidential information is in principle contrary to public policy and prima facie unlawful, if an infringement of the applicant’s goodwill is likely. (3) Employers who discover that a former employee has misappropriated confidential information should act swiftly. In this case, the court was satisfied that the matter was sufficiently urgent. The court granted comprehensive relief, including not only the interdict against solicitation but also orders directing the respondents to delete, remove and destroy all electronic copies of the employer’s confidential information and personal data from all devices and cloud storage services, and to hand over all hard copies. Employers should consider seeking such ancillary relief to ensure the practical effectiveness of an interdict.
The judgment is available here.
- G4S Deposita (RF) (Pty) Ltd v Harmse (2025/144680) [2025] ZALCJHB 525 (5 November 2025)
Confidentiality obligation – fiduciary duty of employee relating to confidential information of employer – conduct of employee upon resigning breaching fiduciary duty – employee downloaded and stored vast amount of documents from applicant’s Google Drive repository of company information prior to resigning and joining competitor – employee having no reasonable or acceptable explanation for her conduct – employer entitled to relief protecting confidential information – respondent interdicted and restrained from using, distributing, copying, publishing or implementing applicant’s/applicant’s clients’ data, intellectual property, documentation and/or confidential information in any form or manner – costs awarded in favour of applicant.
Key takeaways: (1) An Anton Piller order is a powerful tool available to employers who have reasonable grounds to believe that a departing employee has appropriated confidential information and may retain it on personal devices or in digital storage for their own use or the use of third parties, such as a competitor. Employers confronted with suspicious conduct by departing employees, particularly those joining competitors, should consider seeking urgent ex parte relief to preserve evidence and prevent dissipation of confidential information. (2) The duty to preserve confidential information is not limited to the existence of the employment relationship but extends to the period after termination of the contract of employment. This means that a departing employee cannot take the position that their confidentiality obligations cease upon termination of employment. (3) Beyond any express contractual confidentiality undertaking, it is an implied term of the contract of employment that the employee will act with good faith towards the employer and serve the employer honestly and faithfully.  This implied duty of good faith operates independently of express restraint of trade provisions, meaning that even in the absence of such a restraint (and even a confidentiality clause), an employer may still be able to protect its confidential information. (4) An employer is not obliged to accept undertakings offered by an errant former employee who has already acted in breach of their fiduciary and confidentiality obligations. Such undertakings often ring hollow and an employer cannot be expected to sit by and hope that a former employee who has already demonstrated bad faith will act honourably in complying with undertakings. Furthermore, any undertaking, to be effective, must be unconditional and tantamount to a tender of the relief sought.
The judgment is available here.
Oppressive remedy
- Kula and Others v Busamed (Pty) Ltd and Others (2025/008323) [2026] ZAKZDHC 8 (6 February 2026)
Urgent application – applicants sought interim interdict and declaratory relief following termination of employment of first applicant, chief executive officer (CEO) of Busamed – Uniform Rule 7 authority, urgency and jurisdiction considered – urgency self‑created and relief sought amounted to unfair dismissal claim disguised as contractual claim – dismissal disputes fall within LRA framework and must be pursued in Commission for Conciliation, Mediation and Arbitration (CCMA) or Labour Court, not High Court – reliance placed on Chirwa v Transnet Ltd and Others (CCT 78/06) [2007] ZACC 23 (28 November 2007) confirming primacy of LRA dispute‑resolution structures – matter struck from the roll for lack of urgency – first applicant ordered to pay wasted costs including costs of two counsel on Scale C.
Key takeaways: (1) Terminations of senior executive employees can be tricky for employers to navigate. Often, in challenging the termination of their employment, such employees choose not to follow the ordinary unfair dismissal route as envisaged in the LRA, but to approach a court for contractual relief. Among the issues considered, this case involved the novel argument that the termination of the CEO’s employment gave rise to an ‘oppressive remedy’ envisaged in section 163 of the Companies Act, 2008.  This section permits a shareholder or director to apply to court for relief if, among other things, any act or omission of the company, or a related person, has had a result that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, the applicant. In considering such application, the court may make any interim or final order it considers fit, including, among others, an order restraining the conduct complained of. The Court expressed a view in this case that it could not have been intended by the legislature that the relief granted by a court in terms of section 163 of the Companies Act could extend to reinstatement of a former executive employee into his position when it is clear that the continued working relationship is intolerable or at an end. Accordingly, an executive employee cannot rely on section 163 of the Companies Act to claim reinstatement (iie specific performance) in the context of a contractual claim in circumstances where specific performance would otherwise not be a competent remedy. (2) Our courts have previously held that an order of specific performance is discretionary and must be awarded sparingly in the context of employment relationships. Specific performance ought ordinarily not be granted where the employer can show a deterioration of the employment relationship to the extent that it would make it difficult for the employee to continue their work. The Court held that an employee whose contract of employment is prematurely terminated by an employer is entitled to claim breach of contract under the common law, but the remedy is a damages claim in the ordinary course.  In essence, if the claim is contractual, the remedy is damages; if the claim is for reinstatement, the proper forum is the CCMA and Labour Court.
The judgment is available here.
Section 197 of the LRA
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Electro Hydro World (Pty) Ltd v Murray and Roberts Cementation (Pty) Ltd and Others (JA132/24) [2025] ZALAC 62 (27 November 2025)
Appeal – section 197 of the LRA – transfer of business as going concern – tender replacement for grout‑pumping services at mine shaft – transaction met statutory requirements – business entity capable of transfer – identity retained post‑transfer – core infrastructure and inputs constant – continued provision of same service for same client – operational differences and new technology not negating continuity of economic activity – appeal dismissed.
Key takeaways: (1) In the context of outsourcing arrangements (whereby one service provider replaces another in providing certain services to a client), operational distinctions in the running of the business, such as more advanced technology, different staffing models or shift systems, and enhanced efficiencies, will not assist an incoming contractor in avoiding the application of section 197 of the LRA where, in substance, the core function of the business remains materially the same. In this case, the Court found that when viewed holistically, the core economic activity – the provision of grout pumping services, using the same inputs provided by the client to the same client – remained essentially constant. The fact that the service was to be delivered more efficiently and at a larger scale, across two plants rather than one, did not alter the essential nature of the service being performed. (2) Section 197 does not require the transfer of every single asset to give rise to a transfer; only those assets without which the business cannot be carried on. In this case, the fact that computers, accounting, software, furniture and similar office equipment did not transfer, were not determinative of whether a business transferred as a going concern, as these were not core assets needed to run the business. The essential operational capacity, being the ability to provide grout-pumping services using the infrastructure, utilities, raw materials and other assets supplied by the client, remained intact. Accordingly, the incoming contractor was able to continue the same economic activity seamlessly. (3) Provisions in tender documents that reference section 197 (such as requiring tenderers to make provision for section 197) may indicate that the parties contemplated the application of the section. However, the application of section 197 is ultimately determined by whether the underlying transaction gives rise to a transfer of a business as a going concern as a matter of fact and law, not by the labels parties give to it. Further, a contractual clause requiring provision for section 197 will not, on its own, trigger the section where the legal and factual requirements are not otherwise met, nor will the absence of such a clause prevent its application where they are.
The judgment is available here.
Off-duty misconduct
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Saficon Industrial Equipment (Pty) Ltd t/a Toyota Forklift v Seasani NO and Others (PR87/20) [2025] ZALCPE 27 (14 November 2025)
Review application – arbitration award finding dismissal unfair and ordering reinstatement – dishonesty in failure to disclose assault – failure to follow valid and/or reasonable instructions to provide company with code to unlock company-allocated cell phone – question before commissioner was whether company had authority to discipline employees for misconduct that occurred at social gathering organised and attended by group of its employees after working hours and away from company premises – company contending that commissioner committed error of law and reached unreasonable conclusion in finding that there was no nexus between assault and its business; that there was no impact on employment relationship; that there was no obligation to disclose assault; and that reinstatement was appropriate remedy – commissioner considered principal issue – no evidence that the assault and the failure to disclose it led to workplace disharmony – award reasonable – application dismissed.
Key takeaways: (1) As a general legal principle, employers have no authority to discipline employees for misconduct committed outside working hours and away from the employer’s premises. However, if the conduct contravened a rule regulating conduct of relevance to the workplace, the employer would have authority over the employee. The enquiry in these circumstances is two-fold: firstly, the employer must show that there is a connection between the conduct and the employer’s business; and secondly, if the connection is established, the employer must lead evidence to show the impact the misconduct had on the operations of the business. If the impact is such that a continued employment relationship is impossible and/or that the trust relationship had broken down irretrievably, then the employer would have succeeded in discharging its onus that the dismissal was substantively fair. The fact that a social gathering is attended by work colleagues does not automatically render misconduct at that gathering ‘workplace misconduct’. Where a gathering is organised by employees privately, attended voluntarily, after work hours, away from the employer’s premises, and is not intended to further the employer’s business, misconduct occurring there, or the failure to report it, may fall outside the employer’s disciplinary authority. (2) Where employers issue cell phones to employees and permit personal use, they should exercise caution before demanding access to those devices. This case suggested that instructions to provide passwords may be found to be unreasonable where the employer does not inform the employee of the purpose for seeking access and no measures are offered to protect the employee’s personal information.
The judgment is available here.
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IMATU obo Sauls v City of Cape Town and Others (C485/2024) [2026] ZALCCT 10 (22 January 2026)
Dismissal – off-duty misconduct – learner law enforcement officer arrested for driving own vehicle under influence of alcohol – appropriateness of sanction of dismissal – offence not viewed as serious by the criminal justice system – employee admitted to a conversion programme and had no resultant criminal record – incident did not occur in full view of the public; only member of the public present was the passenger – absence of evidence showing workforce impact or operational harm – progressive discipline and early career status were not properly factored into sanction analysis – no rational basis for finding nexus between off-duty misconduct and capacity to perform work duties – colleague arrested for same offence, with higher alcohol content and who had resisted arrest subsequently reinstated at arbitration, which award employer failed to take on review – dismissal substantively unfair.
Key takeaways: (1) In order to discipline an employee for off-duty misconduct, the employer must establish a sufficient nexus between the employee’s off-duty conduct and the operational requirements of the employer’s business. The mere fact that an employee occupies a particular position is, on its own, insufficient to establish the required nexus. A number of factors are relevant in determining whether an employer may dismiss on the basis of off-duty misconduct, including: the nature of the misconduct, the nature of the work performed by the employee, the employer’s size and position in the market, the nature and size of the workforce, the nature of the employer’s business, the relationship between the employee and the victim (if applicable), the impact of the misconduct on the workforce and the employment relationship, and the employee’s capacity to perform their job. Whether there is a workplace regulation or policy that specifically deals with off-duty misconduct will also be relevant. Employers should ensure that each of these factors is considered before concluding that dismissal for off-duty conduct is warranted. (2) Employers must apply discipline consistently. This case shows that where an employer has accepted an arbitration award reinstating another employee who was dismissed for similar (more serious) off-duty misconduct without taking that award on review, this may be used as evidence to support the argument that the employer does not regard such conduct as justifying dismissal. Pursuing a more junior employee with greater vigour in similar circumstances may undermine the fairness of the sanction.
The judgment is available here.
Strikes
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Solidarity obo Arendse v Heineken Beverages (Pty) Ltd (C583/2023) [2025] ZALCCT 129 (8 December 2025)
Section 5 of the LRA – non-payment of short-term incentive bonus (STI) to striking workers – in terms of STI policy, payment is discretionary and subject to qualifying criteria – in the event of gross under-performance, misconduct and/or industrial action, employer may decide not to grant an STI payment – employer informed employees about ‘no work no pay principle’ that would apply to any strike action and of the impact that the strike will have on the payment of their STI, due to criteria in the STI policy – strike lasted only two days – survey of jurisprudence on the correct test for determining breach of prohibited discrimination under section 5 and use of economic measures to incentivise employees not to engage in strike action – employer failing to discharge onus of demonstrating that withholding bonus from strikers was justified – employer ordered to pay bonuses.
Key takeaway: The withholding of a bonus or incentive payment from employees solely because they participated in a protected strike will constitute a prima facie breach of sections 5(1) and 5(2)(c)(vi) of the LRA, which prohibit discrimination against employees for exercising rights conferred by the LRA, including the right to strike. Once an employee establishes the facts of the discriminatory conduct, the onus shifts to the employer to justify the differential treatment. A mere assertion that the bonus was withheld in accordance with a pre-existing policy, or that the differential treatment forms part of the employer’s collective bargaining power play, will not, without more, be sufficient to discharge this onus. The current test, based on the jurisprudence from the LAC, is whether the differential treatment is justified as being a suitable and proportional measure or response to achieve a legitimate purpose, such as preserving operational stability or incentivising continued production during a strike. The proportionality of the employer’s response is accordingly a critical factor. Where a strike is of short duration, a decision to completely deny strikers a bonus that they would otherwise have been entitled to receive may be found to be a disproportionate response, particularly if the employer fails to explain why such a total forfeiture was warranted in the circumstances.
The judgment is available here.
