South Africa: Employment case law update July 2025 – key takeaways

On Thursday, 10 July 2025, we hosted a webinar on the latest cases impacting the employment law landscape in South Africa.  Please click here to access a recording. Citations and mini-summaries of the cases discussed, together with key takeaways, are set out below.

Unfair discrimination

• AMCU obo Members v Aberdare Cables (Pty) Ltd and Others (PA09/2024) [2025] ZALAC 26 (14 April 2025)

Appeal against decision of the Labour Court – unfair discrimination on ‘arbitrary ground’ in terms of section 6(4) of the Employment Equity Act, 1998 (EEA) – employer initiated retrenchment consultations, after which it was agreed between it and the majority union, NUMSA, that, in order to avoid further job losses, all new employees employed after 1 January 2014 would be engaged on the MEIBC minimum rate of pay, while current employees would continue to be paid at the higher ‘Aberdare rate’ – arbitrary ground relied upon by AMCU was that employer irrationally and arbitrarily elected to apply a higher rate of remuneration than the minimum MEIBC wage rate only with respect to the comparator employees – AMCU failed to establish that difference in remuneration was irrational, as there were sound operational reasons for the decision – no proper arbitrary ground of discrimination pleaded – grandfathering practice not unfair and similar to grounds set out in Regulation 7 of the Employment Equity Regulations, 2014. 

Key takeaways: (1) When relying on an ‘arbitrary ground’ of discrimination in an unfair discrimination claim in terms of the EEA, it is now well-established that the narrow interpretation applies and a claimant seeking to establish discrimination on this basis must identify the arbitrary ground of discrimination, as opposed to making a general allegation of mere arbitrariness or capriciousness. Such arbitrary ground must be based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human being or affect them adversely in a comparably serious manner. (2) A particular date of employment (or what has been referred to in another case as ‘newness’) is unlikely to meet the requirements for an ‘arbitrary ground’ of discrimination. (3) Differentiation in remuneration which arises from the application of ‘grandfathering’ (as agreed in a collective agreement), i.e. the practice of retaining an employee or group of employees on existing terms and conditions of employment, while different, usually less favourable, terms and conditions of employment apply to all future cases, is unlikely to be unfair for purposes of the EEA.

The judgment is available here.

Legal representation at CCMA

• Fraser Alexander (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR710/21) [2025] ZALCJHB 110 (14 March 2025)

Review application – arbitration award – legal representation – employee dismissed after motor vehicle accident – previous incidents – commissioner finding dismissal unfair – employee’s legal representative allowed to be present during conciliation phase – employee allowed to be legally represented in arbitration – no formal application for legal representation and legal representative failed to address the aspects required to be considered in terms of Rule 25 of the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA Rules) – commissioner did not give applicant opportunity to obtain legal representation in order to level playing field – applicant should have been advised that arbitration would be postponed to afford him opportunity to procure legal representative – applicant was deprived of fair hearing – award reviewed and set aside.

Key takeaways: (1) In review proceedings brought in terms of section 145 of the Labour Relations Act, 1995 (LRA), where the ground of review relied upon is that the commissioner committed misconduct in relation to the duties of the commissioner as arbitrator (section 145(2)(a)(i)), then the Labour Court must consider, firstly, whether the commissioner indeed conducted himself in a manner that could be considered to be unfair; and if so, then secondly, whether such unfair conduct had the effect of depriving the applicant of a fair hearing. If the answer to both of these questions is in the affirmative, then the commissioner would have committed misconduct in the conduct of the arbitration proceedings, which in turn vitiates the entire arbitration proceedings, and the award must be reviewed and set aside. The issue of a reasonable outcome is irrelevant.  (2)  Legal representatives are not permitted to attend conciliation proceedings under rule 25 of the CCMA Rules. Where a commissioner permits a legal representative to be present during the conciliation stage of a con-arb hearing, this may constitute a reviewable irregularity. (3) Legal representation during arbitration must be granted based on a judicial exercise of discretion considering the complexity of the dispute, questions of law, the public interest, and the comparative ability of the parties. A commissioner’s conduct in granting legal representation in arbitration proceedings may constitute a reviewable irregularity, where the commissioner exercises their discretion in a mala fide or capricious manner or in a manner that is not considered judicious. Further, it is an essential requirement of procedural fairness to both parties that if one party is permitted legal representation, the other is also afforded that right. In this case, the Court found that the commissioner failed to properly consider the required factors in making the decision to grant legal representation to the dismissed employee, and when granting the employee legal representation, should have informed the employer that if it wanted legal representation, the arbitration would be postponed to afford it an opportunity to procure a legal representative.  These failures deprived the applicant employer of a fair hearing.

The judgment is available here.

Unlawful dismissal / employment of foreign nationals

• Nyakudya v O.R Tambo District Municipality (862/2024) [2025] ZAECMHC 40 (27 May 2025)

Unlawful termination – foreign national – applicant, a Zimbabwean national, employed by respondent municipality on a series of fixed-term contracts, continued working after expiry of last contract and work permit – respondent terminated employment summarily, citing irregularity and unlawfulness due to expired work permit and lack of South African identity document – whether termination lawful – Immigration Act, 2002 prohibits employment of illegal foreigners but does not oust right to fair labour practices – employer failed to follow fair procedure and provide notice as required by Basic Conditions of Employment Act, 1997 (BCEA) – termination declared unlawful and set aside – reinstatement not ordered as position no longer existed – costs awarded to applicant.

Key takeaways: (1) It is an established principle that the Constitutional right to fair labour practices applies to all individuals regardless of their legal status or right to work in the country. This extends to foreign nationals, even where they are employed without a valid work visa – meaning that they enjoy equal protection under our employment laws. Accordingly, in circumstances where an individual is found to be employed without the required work visa, or works illegally beyond the expiry date of their visa, this does not mean that the employment contract is rendered invalid and that the employment relationship simply lapses, nor can the employer summarily terminate an employee’s employment. Doing so would put the employer at risk of an unlawful dismissal claim, as was the case in this matter, or an unfair dismissal claim in terms of the LRA. (2) While they do have the right to fair labour practices, it is an offence under the Immigration Act for an employer to employ (or continue to employ) an illegal foreigner and employers accordingly need to perform a balancing act between their obligations under the Immigration Act and employment legislation, respectively. The fact that an employee does not have a legal right to work in South Africa would, arguably, be a fair reason to terminate the employment relationship. It is, however, still necessary for the employer to follow a fair procedure. Depending on the circumstances, the most appropriate route to follow will usually be an incapacity dismissal, as the lack of a valid work visa impacts the employee’s capacity to perform their job. Where the employee is dismissed, the employer should provide the requisite notice of termination as per the employment contract, read with the BCEA, although in these circumstances, where continued employment is in fact illegal, it would be appropriate to provide notice pay in lieu of the employee working out the notice period.

This judgment is available here. 

Misconduct

• Medici Energy (Pty) Ltd v Bennet No and Others (C89/2023) [2025] ZALCCT 34 (21 May 2025)

Dismissal – gross insubordination – failure to return to office – work from home arrangement terminated – arrangement put in place due to child’s auto-immune condition – instruction was unreasonable and retaliatory – issued shortly after employee indicated intention to lodge a formal grievance – no proper justification for abruptly ending long-standing arrangement – failure to ensure a fair disciplinary process – award reasonable and justified – application dismissed.

Key takeaway: Where an employer contemplates changing existing arrangements relating to remote or hybrid working, to revert to full-time office attendance, any ‘return-to-office’ instructions must be reasonable in order to be enforceable. Further, it is advisable for such instructions to follow a process of consultation. This will ensure that employees have the benefit of interrogating the reasons for the proposed change in working arrangements and properly understand the employer’s position, and may mitigate the risk of unfairness claims. Careful consideration should also be given to whether such instructions may amount to a change in contractually agreed terms and conditions of employment, in which case employees’ consent would be needed to the change.

The judgment is available here. 

• Sibanye Gold Ltd t/a Sibanye Stillwater v Commission for Conciliation, Mediation and Arbitration and Others (JR 1898/2020) [2025] ZALCCT 22 (10 April 2025)

Reinstatement of review application – commissioner finding dismissal of employee unfair and awarding reinstatement, with limited back pay, and subject to issuance of a final written warning – shop steward, employed as a rock drill operator, dismissed for telephonically intimidating HR colleague during violent strike – intimidation versus undue pressure – arbitrator finding that complainant was not unreasonably fearful, but no evidence to support conclusion that threat was made, nor that conduct was intended to intimidate complainant – arbitrator’s finding that conduct of putting undue pressure on colleague was inappropriate and deserving of sanction less severe than dismissal was within range of justifiable outcomes an arbitrator might arrive at on the evidence – review application reinstated – review application dismissed.

Key takeaways: In disciplining employees, employers should carefully distinguish between conduct that is genuinely intimidatory and conduct that, while inappropriate, does not meet the threshold for intimidation. In the context of industrial action, not all conduct that causes fear or distress to a colleague will necessarily amount to intimidation. The test for intimidation in a workplace context requires that the conduct, viewed objectively, would have made a reasonable person in the complainant’s position fear imminent harm or injury, and that there was probable intent to intimidate. Where misconduct falls short of intimidation but involves inappropriate or undue pressure on a colleague, a sanction less severe than dismissal may be appropriate. In this case, the Court found the commissioner’s reasoning – that the violent context of the strike and the general climate of fear were relevant to understanding the complainant’s reaction, but did not, in themselves, elevate the employee’s conduct to intimidation in the absence of explicit or implicit threats of retaliatory conduct against the complainant if she did not co-operate – to fall within the band of reasonable decisions an arbitrator could make.

The judgment is available here. 

• Association of Mineworkers and Construction Union obo Matebele and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR 1895/21) [2025] ZALCJHB 163 (16 May 2025)

Review of arbitration award finding dismissals for misconduct fair – four employees dismissed for alleged misconduct (sabotage, interference with security personnel, and obliteration of evidence) during an unprotected strike – jurisdictional challenge – whether section 191(5)(b)(ii) of the LRA requires all unfair dismissal disputes relating to unprotected industrial action to be referred to Labour Court, or whether the CCMA has jurisdiction to arbitrate such dispute – whether employer should show why it took action against employees committing one form of misconduct, whilst opting against taking steps against other employees who contemporaneously committed different type of misconduct – CCMA had jurisdiction as the true reason for dismissal was misconduct, not mere participation in the unprotected strike – commissioner’s award lacked reasoning on why only applicants were dismissed – evidence inadequately assessed – derivative misconduct principles misapplied – commissioner failed to justify sanction or address consistency – award reviewed and set aside – matter remitted for rehearing before a different commissioner.

Key takeaways: (1) The CCMA retains jurisdiction to arbitrate unfair dismissal disputes where the true or dominant reason for dismissal is misconduct committed during an unprotected strike, rather than the mere fact of participation in the strike. Only where the dismissal is for participation in an unprotected strike per se does the Labour Court have exclusive jurisdiction under section 191(5)(b)(iii) of the LRA. Employers should clearly articulate whether the dismissal is for participation in industrial action or for separate acts of misconduct. (2) Employers must act consistently when disciplining employees for misconduct. However, consistency does not require identical treatment in all cases; differentiation is permissible where justified by the circumstances of each employee or the nature of the misconduct. Employers may, in certain circumstances, discipline only some employees involved in group misconduct, provided there are sound, fair, and non-arbitrary reasons for doing so (e.g., aggravating conduct, or inability to prove misconduct against others).

The judgment is available here. 

Automatically unfair dismissal

• Mqikela v Pristo Response Trading (JS562/22) [2025] ZALCJHB 243 (18 June 2025)

Automatically unfair dismissal – grievance lodged against director – alleged unfair treatment and victimization – non-payment of bonuses and salary adjustments – failure to address grievance – unfair labour practice dispute referred to CCMA – informed of possible retrenchment within 24 hours of referral – referral of unfair labour practice dispute is main cause of dismissal – operational requirements defence was a fabrication – dismissal declared automatically unfair in terms of section 187(1)(d) of the LRA.

Key takeaways: (1) In terms of section 187(1)(d) of the LRA, a dismissal is automatically unfair where the reason for the dismissal is that the employee took action, or indicated an intention to take action, against the employer by exercising any right conferred by the LRA, or participated in any proceedings in terms of the LRA. While the referral of a grievance in terms of an employer’s internal procedures would not invoke the protection of this section, as this would not involve the direct exercise of a statutory right against the employer, the referral of a dispute to the CCMA, such as an unfair labour practice dispute, would fall squarely within the confines of section 187(1)(d). It is irrelevant whether the dispute has prospects of success or not, so long as it is not frivolous or vexatious or made mala fide.  (2) The misrepresentation of the true reason behind a dismissal has consistently been met with disdain by our courts. Employers who deliberately seek to disguise automatically unfair dismissals should be forewarned that such conduct may attract increased awards of compensation, or reinstatement, as well as costs orders.

The judgment is available here. 

Retrenchment

• Oily SA (Pty) Ltd v Cholokh and Others (D333/2023) [2025] ZALCD (6 May 2025)

Review – dismissal for operational requirements for failing to agree to amended restraint of trade – restraint covered whole of South Africa for period of 24 months – employee objected to removal of compensation for restraint and extension of restraint area – CCMA finding dismissal substantively and procedurally unfair – applicant failed to show that there was an economic operational need to retrench the respondent – employer also failed to engage in meaningful joint consensus-seeking process as required by section 189 of the LRA – Commissioner’s conduct in assisting unrepresented parties and interrogating central issues not irregular – finding reasonable – claim dismissed.

Key takeaways: (1) For a dismissal based on an employer’s operational requirements to be substantively fair, an employer must provide clear, substantiated evidence of a genuine operational need to retrench, especially where the reason is the employee’s refusal to accept new contractual terms, like a restraint of trade. Vague references to risk or unspecified operational threats are insufficient. In this case, where the employee was retrenched because he refused to agree to a broader restraint of trade, the Court found that the employer failed, among other things, to prove the general need for the restraint, or to justify the extension of the duration and geographical reach of the existing restraint, and the removal of the restraint payment, and failed to lead any evidence to show the losses it claimed would materialise from the employee’s failure to sign the new restraint. For this reason, the commissioner’s finding that the dismissal was substantively unfair was reasonable. (2) Section 138(3) of the LRA empowers a CCMA commissioner to conduct proceedings in a manner s/he considers appropriate. In this regard, a commissioner is bound to assist unrepresented parties as provided in clauses 20 and 21 of the Guidelines of the CCMA, which supports the lending of a helping hand to parties in the arbitration. In this case, where both parties were unrepresented in the arbitration, the fact that the commissioner questioned the employer’s Chief Executive Officer regarding the reasonableness and lawfulness of the new restraint clause was found to be unassailable and necessary for the commissioner to attempt to properly ventilate the central issue in the arbitration. There was no gross misconduct on his part as there was no distorting effect arising from the commissioner’s conduct.

The judgment is available here. 

Reinstatement

• Mavundla v Gotcha Security Services (Pty) Ltd (CCT 170/24) [2025] ZACC 11 (18 June 2025)

Application for leave to appeal against order of Labour Court dismissing claim for payment of arrear remuneration pursuant to reinstatement of employee – arbitration award reinstating employee with effect from specified date – delay in factual reinstatement due to dispute about conditions imposed by employer (relating to the production of a firearm competency certificate and industry registration) – employee bringing contempt application – Labour Court order compelling unconditional reinstatement from later date but silent on arrear remuneration – whether employee entitled to arrear remuneration for period between original reinstatement date and actual reinstatement – erroneous interpretation of enforcement order as replacing original arbitration award – employee entitled to claim arrear remuneration from original date of reinstatement – leave to appeal granted, appeal upheld and employer ordered to pay arrear remuneration for full period.

Key takeaways: (1) Where an arbitration award or court order reinstates an employee with effect from a specified date, the employer is obliged to pay remuneration from that date, even if, factually, reinstatement is delayed due to the employer’s conduct. An order enforcing a reinstatement order does not automatically replace the original order for purposes of arrear remuneration, unless it expressly limits the entitlement to back pay. All that is replaced is the date on which the restoration of the contract of employment must occur – which is effected by way of mutual tender of services by the employee and acceptance of such tender by the employer. (2) Employers should ensure that any disputes regarding reinstatement are resolved promptly and in good faith, and should not assume that delays in accepting a reinstated employees’ tender of services, or conditions imposed by them in respect of such reinstatement, will relieve them of liability for arrear remuneration.

The judgment can be found here. 

Protected disclosures

• Ramela v Cooper No and Others (2025/055130) [2025] ZAWCHC 193 (5 May 2025)

Urgent application for protection in terms section 4 of Protected Disclosures Act, 2000 (PDA) – disciplinary hearing – alleged disclosures relating to mismanagement and corruption concerned matters already under investigation by respondent and in public domain – did not constitute new or previously unknown information – timing of disclosures suggested ulterior motive to avoid disciplinary action – disclosures not made in good faith – urgency self-created – Application dismissed.

Key takeaways: (1) It is not a disclosure of ‘any’ information that is protected under the PDA. For a disclosure to be protected under the PDA, it must be new information not already known to the employer or in the public domain. Reiterating information that is already common knowledge or known to the employer, and that the employer is already addressing, cannot be classified as a protected disclosure. However, where the disclosure is clearly indicative of a breach of legal obligations (and possibly criminal conduct) on the part of the employer, and the employer did nothing about it, the employee would then enjoy protection. (2) For the PDA to apply, there must be a direct causal link between the protected disclosure and the alleged occupational detriment. Disclosures made after the commencement of disciplinary proceedings are unlikely to be regarded as bona fide or in good faith, especially where they appear to be aimed at avoiding disciplinary consequences. Disciplinary action that is not retaliatory and is based on genuine misconduct will not be considered an occupational detriment under the PDA.

The judgment is available here.