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

On Thursday, 6 November 2025, 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.

Parental leave

• Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23; 309/23) [2025] ZACC 20 (3 October 2025)

Applications to confirm order of High Court – constitutionality of sections 25, 25A, 25B and 25C of Basic Conditions of Employment Act, 1997 (BCEA), together with corresponding sections of Unemployment Insurance Act, 2001 (UIA) – maternity and parental leave – whether relevant provisions are inconsistent with the Constitution on the basis that they unfairly discriminate and are in violation of equality and human dignity rights – declaration made by High Court confirmed – relevant provisions are invalid and inconsistent with Constitution to the extent that they unfairly discriminate between men and women and different classes of parents as to length of parental leave, entitlement to unemployment benefits and periods for which unemployment benefits are paid – declared that section 25B(1) of the BCEA and section 27(1)(c) of the UIA are invalid and inconsistent with Constitution to the extent that they limit parental leave and related benefits to the case where the adopted child is below the age of two years – declarations of constitutional invalidity suspended for period of 36 months to afford Parliament opportunity to remedy constitutional defects – interim reading-in granted in respect of certain BCEA provisions.

Key takeaways: (1) The Constitutional Court declared certain provisions of the BCEA and UIA to be unconstitutional and invalid because they unfairly discriminate between men and women and different categories of parents in terms of the duration of leave afforded to them and the extent and duration of unemployment insurance benefits provided. It suspended the declarations of invalidity for 36 months to allow Parliament an opportunity to cure the defects in the legislation and ordered an interim reading-in for the BCEA, with immediate effect. (2) The effect of the interim reading-in is that the separate statutory categories of maternity, parental, adoption and commissioning parental leave are, for the interim period, consolidated into a single parental leave framework. A single parent, or a parent who is the only employed party in a parental relationship, is entitled to at least four consecutive months’ unpaid parental leave. Where both parties are employed, they are entitled to share four months and 10 days’ unpaid parental leave. Certain statutory protections remain in place for birth mothers: a birth mother is legally prohibited from working for six weeks after birth unless certified fit to do so, and she is entitled to commence parental leave any time from four weeks before birth. (3) While the judgment reflects an enlightened approach to caregiving as a shared responsibility between parents, the order has raised several legal and practical difficulties for employers to navigate, particularly those who have historically provided enhanced parental leave benefits. Employers will now be required to reconsider their existing leave policies and contractual provisions and give careful thought to how they update these documents to ensure that they are legally defensible, while also remaining supportive for employees, and operationally and financially sustainable.

The judgment is available here.

Retrenchments

• Securiforce CC v Mokoena NO and Others (JR731/24) [2025] ZALCJHB 367 (21 August 2025)

Review application – security officer dismissed following failure of polygraph test – employment contract required him to undergo regular polygraph tests and stipulated that failure to pass such a test would lead to employee being deemed incapable to continue work and may result in an incapacity process – the contract also emphasised that, in the security industry, the employer’s operational requirements are such that it is necessary that an employee be completely trustworthy and required the employee to acknowledge that ‘failure of a polygraph examination is a substantively fair reason as an operational requirement to embark upon an incapacity procedure’ – employee also agreed to the terms and conditions of the employer and its client and to be removed from the client’s site if the polygraph test showed deception – client required its own staff, the employee and other security officers to undergo polygraph testing due to stock shrinkages – following removal from client site, a facilitator was appointed to determine whether there were any alternatives to termination – dismissal characterised as incapacity but commissioner found that it was really based on the employer’s operational requirements, which would have entitled him to severance pay – dismissal found to be substantively unfair – employee was clearly capable of performing his duties; it was the employer’s operational requirements that caused him to be removed from the client’s site and his services being terminated when no alternative could be found – two months’ remuneration as compensation reasonable in light of his entitlement to severance pay and eight years’ service.

Key takeaway: It is often difficult to determine how to characterise a dismissal, and what process to follow, where an employee who is placed to work at a client site is removed from that site and no alternative employment can be found. In such a situation, it is important to clearly distinguish between incapacity and operational requirements – which route to follow will depend on the specific circumstances of the case and the underlying reason for the removal from the site will be important. Where the employee is physically and legally capable of performing work for the client, but some issue renders the employee unsuitable for continued placement, or results in the client’s contractual right to remove the employee, the matter should usually be approached on the basis of operational requirements, and the employee would be eligible for severance pay.    

The judgment is available here. 

Strikes

• National Union of Mineworkers and Others v Baseline Civil Contractors (Pty) Ltd (C 376/2023) [2025] ZALCCT 73 (5 September 2025)

Dismissal – unprotected strike caused by employer altering date of payment of annual attendance bonus – date of due payment not governed by collective agreement – previous practice of paying bonus by mid-December – change of date deferring payment by a week announced only a week before previously designated date – no prior consultation about date variation – employer bearing responsibility for causing unprotected strike action – striking employees subsequently rejecting reasonable compromise proposal and prolonging strike – ultimatums issued – item 6 of Schedule 8 to the LRA considered –   dismissal procedurally fair but substantively unfair – reinstatement ordered.

Key takeaway: Participation in unprotected strike action is serious misconduct as it is aimed at causing damage to the employer. However, this does not mean that dismissal is appropriate for every instance of unprotected industrial action. In determining whether dismissal is appropriate, an employer must conduct a holistic assessment of all the facts and surrounding circumstances, including among others, whether ultimatums were complied with, the duration of the strike, the actual harm/ damage suffered by the employer, the employees’ conduct during the strike, prior history of strike action and importantly, the cause of the strike. Where an employer commits unlawful, unjustified or unfair conduct and employees embark on an unprotected strike in response to such conduct, this can materially reduce the gravity of the employee’s misconduct and dismissal is unlikely to be fair in the circumstances.

This judgment is available here.

• Boomerang Fruits (Pty) Ltd v uMkhonto weSizwe and Others (2025-061014) [2025] ZALCCT 54 (16 July 2025)

Unprotected strike action – final interdict – interim order partly confirmed – political party acting in representative capacity – actions not merely advisory – party not instigating strike but supporting strike by participating in demonstration by strikers, representing strikers in mediation of strike demands, objecting to employer representation, insulting management representative, issuing media statements vilifying the employer during the strike and publicly condemning the employer – final order justified in absence of evidence that demands of strikers resolved – order against political party modified in absence of evidence it instigated strike – costs – both sets of respondents equally responsible for postponement of hearing on return day – attorney for individual respondents failing to confirm authority to appear and withdrawing, warranting consideration of punitive cost award – political party partially liable for remaining costs of application.

Key takeaways: (1) This judgment is a clear reaffirmation that political parties have no licence to operate as proxy unions in the workplace and should not become embroiled in labour disputes. Where they cross the line from providing advice to representation or support of unprotected strike action, they can be interdicted and exposed to costs orders. (2) Employers should be wary when dealing with political parties who want to engage with them in negotiations relating to workplace matters. While such engagement may be beneficial from a practical or business perspective, the political party’s involvement should not be in a representative capacity. Where a political party does become embroiled in industrial action, the employer should document the party’s involvement and ensure that it cites the political party in any court proceedings, in order to obtain an interdict against the party.

The judgment is available here.

Section 188A inquiries

• Bangeni v Local Government Sector Education and Training Authority (2025-096639) [2025] ZALCJHB 379 (28 August 2025)

Application for final interdict to halt internal disciplinary proceedings and compel the employer to conduct a a pre-dismissal arbitration in terms of section 188A(11) of the LRA – applicant, a provincial manager, disclosed information regarding allegedly unethical and unlawful payments made by the respondent to a company with links to the chairperson of its Audit and Risk Committee, as flagged by the Auditor General – applicant emailed the relevant invoice and proof of payment to his private email and later disclosed this to his attorney – charged with misconduct for emailing confidential information to himself and allegedly disclosing it to the media – disclosure to attorney protected – applicant’s attorney notified respondent that applicant required the respondent to invoke section 188A(11) of the LRA and request that the CCMA conduct a pre-dismissal arbitration – chairperson issued ruling that internal hearing would proceed – right to require a section 188A(11) hearing is peremptory and may be exercised unilaterally by the employee – requirements for final interdict met – respondent interdicted from proceeding with the internal disciplinary hearing and ordered to conduct the hearing in terms of section 188A(11) of the LRA.

Key takeaway: Where an employee alleges in good faith that the holding of an inquiry into the conduct or capacity of the employee contravenes the Protected Disclosures Act, 2000 (PDA) – on the basis that such inquiry constitutes an occupational detriment on account of, or partly on account of, having made a protected disclosure – and requires the employer to refer the matter to the CCMA for a pre-dismissal arbitration, an employer is bound to accede to that request. The election to proceed by way of section 188A(11) may be unilaterally exercised by the employee and is peremptory. Continuing with an internal hearing in such circumstances will be in breach of section 188A(11) of the LRA and section 3 of the PDA, and an employee may seek an urgent interdict to halt the internal hearing.  

The judgment is available here. 

Misconduct

• SAMWU obo Malatsi v South African Local Government Bargaining Council and Others (JA 64/23) [2025] ZALAC 40

Appeal – dismissal – double jeopardy and finality – binding effect of prior arbitration award on subsequent disciplinary action – employee initially dismissed for dishonesty relating to alleged unauthorised attempts to access employer’s banking portal – at the first arbitration, the dismissal was held substantively unfair on the primary charge as it was not possible to conclude that he had attempted to access the bank account; however, the arbitrator found the employee culpable for password-related negligence – arbitrator limited retrospectivity of the reinstatement remedy, effectively imposing a four-month unpaid suspension as sanction for that lesser misconduct – following reinstatement, the employer later convened a second disciplinary enquiry and dismissed the employee for gross dishonesty related to the password sharing and breach of the municipality’s IT procedures, arising from the same factual matrix – the second arbitrator upheld the dismissal, finding that the second disciplinary hearing involved new charges which emanated from the same facts – Labour Court dismissed the employee’s review – on appeal, the Labour Appeal Court held that the first arbitration award’s sanction for password-related misconduct was final and binding and precluded the employer from imposing a harsher sanction for the same misconduct – second dismissal was substantively unfair.

Key takeaways: (1) When it comes to the double jeopardy principle – ie the principle that an employee cannot generally be charged twice for the same misconduct – fairness is the yardstick. It will only be fair to institute disciplinary action a second time for conduct that arose from the same set of facts in exceptional circumstances. (2) Where a final and binding (unchallenged) arbitration award has determined a sanction for particular misconduct, employers cannot in such circumstances institute fresh disciplinary proceedings in respect of such conduct. In this case, while the municipality only learned of the password-related misconduct at the first arbitration hearing, and in the ordinary course, this would have entitled it to convene a second disciplinary enquiry in relation to that misconduct, what made the matter distinguishable is the existence of the arbitration award issued consequent on the first arbitration which already imposed a sanction for the misconduct.

The judgment is available here.

• Chill Beverages International (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (C160/2024) [2025] ZALCJHB 298 (14 July 2025)

Review application – commissioner finding dismissal substantively unfair – positive alcohol test – zero tolerance policy – employee unknowingly consumed alcohol through cough mixture – displayed no signs of impairment – unblemished six-year service record – dismissal found disproportionate to offence – policy violations must be weighed against contextual fairness – inadvertent breach and lack of intoxication – approach aligned with required holistic assessment – proper evaluation of proportionality and fairness – no misdirection – application dismissed.

Key takeaway: While zero-tolerance alcohol policies may be necessary in certain circumstances to ensure compliance with an employer’s workplace health and safety obligations, this does not negate the obligation to ensure that whatever sanction is levelled against an employee for breaching a policy is appropriate and proportional. The fact that an employer’s policy provides for zero-tolerance does not mean that conduct that may be in breach of the said policy should automatically result in dismissal. In this case, the employee’s dismissal for breaching the employer’s zero-tolerance alcohol policy was found to be substantively unfair in circumstances where he had consumed cough syrup that contained alcohol, there was no evidence to suggest that he had consumed alcohol the night before or morning of his shift or that he was intoxicated, he had a clean disciplinary record over his six years’ service and that there was no history of alcohol misuse.

The judgment is available here. 

• Msitshana v Commission for Conciliation, Mediation Arbitration and Others (JR271/2023) [2025] ZALCJHB 424 (9 September 2025)

Review application – arbitration award finding dismissal fair – condonation for late filing granted – employee of mining company dismissed for breach of alcohol policy – employee claimed to have consumed cough syrup containing alcohol, which she reported to security officer administering breathalyser test – arbitrator found that rule existed; that rule was reasonable and valid; that applicant was aware of rule since she had previously pleaded guilty to same misconduct and been disciplined; that rule had been applied consistently; progressive discipline applied; and that dismissal was appropriate sanction – arbitrator’s decision reasonable – application dismissed.

Key takeaway: Zero tolerance alcohol policies can be implemented in the workplace, depending on the circumstances – such as where the nature of the workplace and/or its operations are inherently dangerous. However, an employer will always need to consider whether dismissal for breaching the zero-tolerance policy is appropriate in the circumstances and consider all relevant factors in addition to the breathalyser test results. In this case, the employee’s dismissal for breaching the employer’s zero-tolerance policy was found to be substantively fair in circumstances where she claimed to have consumed alcohol by taking cough syrup, but this allegation was only raised after the second breathalyser test had been administered and when she was requested to exit the workplace, there were other facts, including the results of a sensory evidence checklist, that recorded her aggressive and unorthodox behaviour and suggested that she had consumed more alcohol than that which would have been present in medication, and she had previously received a final written warning for the same conduct and referred to the employee assistance programme.

The judgment is available here. 

• SAMWU obo Mvinjelwa v City of Tshwane Metropolitan Municipality and Others (JR1131/2017) [2025] ZALCJHB 472 (10 October 2025)

Review application – dismissal for misconduct found by commissioner to be fair – shop steward slapped a member of the public after a dispute over ID requirements – employee denied assault and alleged racial abuse by complainant – arbitrator preferred complainant’s consistent evidence – union alleged procedural unfairness on basis that union was not notified before initial hearing – hearing was postponed and only proceeded months later, which allowed union opportunity to consult – Code of Good Practice: Dismissal (Code) serves as guideline only – main purpose of provision is to allow consultation process to try to resolve dispute before disciplinary action is embarked upon – none of the parties prejudiced by failure to comply strictly with item 4(2) of the Code – allegations regarding procedural fairness of no merit – arbitrator’s findings on substantive and procedural fairness reasonable. 

Key takeaway: Item 4(2) of the Code in schedule 8 of the LRA provides that discipline against a trade union representative or an employee who is an office bearer or official of a trade union should not be instituted without first informing and consulting the trade union. The purpose of this provision is to avoid victimisation of shop stewards and other office bearers and encourage early resolution of the matter before resorting to disciplinary action. While compliance with the Code will be considered by arbitrators and the courts when determining procedural fairness, the Code itself is only a guideline and should not be taken as prescribing stringent requirements. Application of the Code may differ from case to case, depending on the circumstances. In determining procedural fairness, each case will be assessed on its own merits, including whether any prejudice was suffered by the employee as a result of the employer’s departure from the provisions of the Code. In this case, while the employer only provided notice of the shop steward’s disciplinary hearing to the union a day after the hearing was meant to take place, the hearing did not proceed as scheduled and was postponed to provide an opportunity for consultation with the union. None of the parties were prejudiced by the employer’s failure to strictly comply with the provisions of item 4(2) and accordingly the arbitrator’s finding that the dismissal was procedurally fair was reasonable.

The judgment is available here.

Suspension

• Bombela Operating Company (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 589-2021) [2025] ZALCJHB 297 (11 July 2025)

Review application – unfair labour practice – arbitration award finding suspension unfair and ordering one month’s compensation – dissemination of confidential documents – suspension letter, handed to employee at the end of a shift, placed him on immediate precautionary suspension pending the outcome of an investigation – employee’s disputed right, in terms of employer’s disciplinary procedure and code, to make representations before precautionary suspension not invoked – conclusion that employer acted procedurally unfairly by not allowing employee to make representations unsustainable – arbitrator misconceived scope of inquiry into reason for suspension – finding of substantive unfairness cannot stand – award reviewed and set aside.

Key takeaways: (1) It is established law, following the Constitutional Court’s decision in Long v South African Breweries (Pty) Ltd and Others, that where a suspension is precautionary and not punitive, there is no legal requirement to afford the employee an opportunity to make representations before placing the employee on suspension. That said, many employers still have historic disciplinary policies or codes that afford employees a right to make representations. Where such right exists in an employer’s policy, the employer will be required to give effect to that right, unless the employee waives it, or does not attempt to invoke it. Failing to do so may render the suspension unfair. (2) When it comes to the substantive fairness of a suspension, following the Long decision, an employer need only show that the suspension was effected in order to allow an investigation to take place; an employer is no longer required to demonstrate why the investigation may be hampered by the employee’s presence at work. (3) Where a development in the law changes the legal position on a topic, employers should not simply assume that the legal principle – as articulated in case law or statute – will automatically apply, or nullify existing provisions of their policies or contracts. It is advisable for employers to monitor legal developments and update these documents regularly so that they reflect and align with the prevailing legal position. Generally, where policies or contracts contain terms that are more favourable to employees, these provisions will continue to apply (despite any change in the default legal position), until the provisions are lawfully amended.

The judgment is available here.