Tutubalang Labour law consultants

26/07/2025

Presumption of innocence Judge Zondo …yours were recommendations not verdicts 🤦‍♀️…He is steering the pot

Former chief justice Raymond Zondo has blasted President Cyril Ramaphosa, saying it had pained him to swear in cabinet ministers who had serious state capture findings against them. Details in the tomorrow.

26/07/2025

Dismissal of Foreign National

A foreign national employee must be provided with proper notice of their termination in line with the Basic Conditions of Employment Act (BCA). Failure to provide such notice may result in the termination being unlawful.

This is the warning of employment law experts at Cliffe Dekker Hofmeyr (CDH), following a recent Eastern Cape High Court judgment.

This was after an application by a research assistant and Zimbabwean national, Samuel Nyakudya.

He was granted a temporary residence permit allowing him to reside in South Africa and seek employment in the category of general work as provided for under the Immigration Act.

03/10/2023

*THINK TWICE BEFORE LODGING FALSIFIED GRIEVANCE*

It is not uncommon for Employees who are unhappy due to the treatment they may receive, from their Employer and colleagues, to lodge a workplace grievance, but what should an Employer do when the grounds of the grievance turn out to be falsified, embellished or inaccurate?

The work environment is teeming with different personalities and opinions, and it is for this reason that one might encounter an issue with other Employees in the workplace. To combat these issues, a structured system must be implemented to address any concerns and complaints. For an Employee to address any concerns, it should be done through a formal grievance procedure.

The lodging of a grievance is a formal process whereby an Employee may lay a formal complaint for adjudication by internal and external parties. A grievance procedure aims to promote fair and sound labour practices to exercise consistency, transparency, and fairness in the workplace. Section 23(1) of the Constitution of the Republic of South Africa, jointly read with Section 185(b) of the Labour Relations Act (LRA), stipulates that every individual has the right to fair labour practices.

Grievances laid are based on the factual conduct of co-employees or other staff members within the workplace. However, it may often happen that the basis of the grievance laid is fictitious, in which instance the Employer may institute disciplinary action against such Employee’s lodging a false grievance.

In the case of the *National Transport Movement obo Letsoha and others vs Bespoke Amenities (2023) 6 BALR 987 (CCMA)*, the Commissioner found the dismissal of seventy-seven (27) Employees to be substantively unfair. Serious allegations were levelled against the Managing Director, alleging s*xual harassment and threatening and intimidation of Employees.

These allegations were used in support of a petition to have the Managing Director of the Employer removed from their position. The petition led to a grievance, whereafter a thorough investigation ensued, resulting in the grievance allegations being found to be without merit. The Employees were subsequently charged with gross dishonesty and insolence. However, the Commissioner found that the charges were embellished and flawed with factual inaccuracies.

Considering that the grievance stemmed from the petition, there was no mention in the petition itself of s*xual harassment. To go further, a petition was not a form of oath that signatories took, and therefore, perjury could not have been a justifiable reason for the dismissal.

The grounds for any grievances should be based on evidence and facts. Should a grievance amount to being frivolous and display intentional fictitious allegations, disciplinary action may be taken against such an Employee for dishonesty and making a false statement. However, to succeed in instituting charges, Employers need to ensure that there is a nexus between the grounds of the grievance and the charge of dishonesty levelled against the Employee.

The Employer would need to prove that there were justifiable reasons to subject the Employee to disciplinary action based on the allegations in the grievance. Should the chairperson in the grievance inquiry find insufficient proof for the grievance lodged by an Employee, and the Employer would like to institute disciplinary action against the same Employee, the Employer should be able to prove that the Employee had the intention to be dishonest when the grievance was lodged. The Employer must always ensure that a proper procedure has been followed in dismissing an Employee to ensure the dismissal is also substantively and procedurally fair.

Formal grievance procedures are pivotal in promoting fairness, transparency, and Employee well-being. By providing a structured and accessible platform for addressing concerns, Employers can foster a positive work environment and encourage open communication between Employers and Employees.

Should an Employer suspect that a lodged workplace grievance may be falsified, embellished or inaccurate, it is advisable to address the grievance with the necessary due diligence. With a shared dedication to implementing and continuously improving these procedures, Employers and Employees can work hand in hand towards a harmonious and productive work environment for all.

05/10/2021

.... Apply

02/08/2021

POPIA AND THE DISCLOSURE OF AN EMPLOYEE’S VACCINATION STATUS .

The Protection of Personal Information Act 4 of 2013 (POPIA) provides for the protection of personal information processed by public and private bodies. Whilst POPIA defines personal information, it also creates another category termed ‘special personal information’.

POPIA defines ‘personal information’ as information relating to: Living natural persons and existing juristic persons. This includes information relating to the race, gender, s*x, pregnancy, marital status, national, ethnic or social origin, colour, s*xual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person. Aspects such as criminal and employment history, physical address, telephone numbers and biometric information are also included under the definition.

Any form of ‘personal information’ may only be processed where:

a person has provided consent;

it is necessary for the conclusion of a contract;

it is imposed by a law;

it protects a legitimate interest of the person;

it is required for the performance of a public law duty by a public body; or

it is needed for pursuing the legitimate interest of the responsible party.

The word ‘process’ is widely defined in POPIA to include: Collection, collation, storage and retrieval of information.

Section 26 of POPIA prohibits the processing of ‘special personal information’. Given the sensitive nature of this information, this is a special category which attracts a higher degree of protection. This information relates to religious or philosophical beliefs, race or ethnic origin, trade union membership, political persuasion, health or s*x life or biometric information. Also included in this category is information relating to the alleged commission of any offence or any proceedings in respect of any offence allegedly committed and the outcome of such proceedings. In the absence of consent, processing ‘special personal information’ is prohibited.

15/04/2021

UNREASONABLE DELAY IN FINALISING DISCIPLINARY ACTION MAY LEAD TO PROCEDURAL UNFAIRNESS

Item 2 (1) of Schedule 8 (Code of Practice: Dismissal) read in conjunction with section 188 of the Labour Relations Act, 66 of 1995, provides that a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment.

Very recently, in Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others (2019) (4) BCLR 506 (CC);

The Constitutional Court held that disciplinary action must be taken within a reasonable period of time. The Court further held that a dismissal should be procedurally, as well as substantively, fair. The LRA espouses speedy resolution of labour disputes. And so does the Employment of Educators Act which provides that the principles underlying any procedure to discipline an educator include that discipline should be prompt and fair, and that disciplinary proceedings “must be concluded in the shortest possible time frame”

In Gcaba v Minister for Safety and Security and Others (2010) (1) SA 238 (CC); Van der Westhuizen J held as follows;

“One of the purposes of law is to regulate and guide relations in a society. One of the ways it does so is by providing remedies and facilitating access to courts and other fora for the settlement of disputes. As supreme law, the Constitution protects basic rights. These include the rights to fair labour practices and to just administrative action. Legislation based on the Constitution is supposed to concretise and enhance the protection of these rights, amongst others, by providing for the speedy resolution of disputes in the workplace and by regulating administrative conduct to ensure fairness.

In National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town and Others (2003) (3) SA 1 (CC), the Constitutional Court recognised this principle and held as follows at paragraph 31;

“By their nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organise their affairs accordingly. They affect our economy and labour peace. It is in the public interest that labour disputes be resolved speedily”.

In Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (CCT 228/14); [2015] ZACC 557 at para 1. Nkabinde J emphasised the importance of time frames in the speedy resolution of labour disputes, as well as the detrimental effects any delays may have on employers and employees held thus:

“Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes. The dispute resolution dispensation of the old Labour Relations Act was uncertain, costly, inefficient and ineffective. The new Labour Relations Act (LRA) introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years.”

The above clearly sets out a legal requirement for employers to adhere to their own timeframes as may be stipulated in the internal disciplinary policies and/or collective agreements.

For instance, in the public service, Chapter 7 of the SMS Handbook deals with the disciplining of the Heads of Departments (HoDs). It provides that when a HoD is suspended, a disciplinary hearing must be held within 60 days. The Executive Authority must appoint a Chairperson and an employer representative to deal with the disciplinary hearing. The chairperson of the disciplinary hearing must then decide on any further postponement and or further suspension.

Chapter 7 of the SMS Handbook further provides that the disciplinary hearing must be held within 10 working days after the notice is delivered to the HoD.

In the event where a delay in the finalisation of disciplinary action is caused by a lengthy investigation or any other circumstance which takes longer than anticipated, it is always advisable to communicate such a delay to the affected employee especially when such employee is placed on precautionary suspension.

Strives to handle each matter with accountability and responsiveness, as if it is representing itself. Magate Phala & Associates’s vision reflects its values: integrity, service, excellence and teamwork

15/04/2021

RETRENCHMENT OF EMPLOYEES ON FIXED-TERM CONTRACTS : HOW FAR CAN YOU GOING ?


Retrenchments are viewed in a bad light due to the very sensitive socio‑economic element of rendering employees jobless. Although regulated by statute, in particular sections 189 and 189A of the Labour Relations Act 66 of 1995, employers still find the retrenchment process a difficult one to navigate.

The advent of the COVID-19 pandemic has made retrenchments commonplace for obvious reasons. As such, once the hurdle of whether to retrench or not has been cleared, and the outcome is to retrench, the question that follows is who then does the employer select to be retrenched.

There are different types of employees; those who are employed on a permanent basis and those on who are on fixed-term contracts. The difficulty comes in where an employee falls under the latter classification. This is because the law provides a stronger protection to those employees because of the nature of their contracts. Simply put, a fixed-term contract of employment cannot be terminated for any other reason outside of a material breach, repudiation, or by way of the contract coming to its natural end e.g. effluxion of time.

However, there are different types of fixed-term contracts which may change the above position. These are classified according to the following:

the period to which the contract is set to exist;

the completion of a specific task or project; or

the occurrence of a specific event.

What is important about the above is that in respect of the first two types of fixed‑term contracts, an employer cannot retrench an employee. The reason being that the employer is bound by the law to honour the terms of those agreements namely; 1) termination by effluxion of time; or 2) termination on competition of the specified task or project.

This brings us to the third type of contract mentioned above. In that instance, should the contract state that the employment relationship is terminable for reasons of operational requirements, the employee may be retrenched even if the fixed period of time has not ended or the specified task or project has not been completed. As such, the inclusion of such a term in the contract serves to guard against the risk of having the dismissal held to be substantively unfair when it is legally challenged at a later stage.

Consequently, when contemplating retrenchments, employers should beware of the fixed-term contracts. Accordingly, those contracts should be perused to establish whether there exists a provision which allows the employer to retrench those particular employees. If not, then the employer is bound by the law which says that where you have a fixed-term contract, an employer cannot dismiss the employee based on operational requirements.

We are labour law practitioners. We represent and presides on all labour disputes. We appear before

23/02/2021

CAN THE EMPLOYER DISMISS AN EMPLOYEE FOR LODGING A GRIEVANCE AGAINST ANOTHER EMPLOYEE SOLELY BASED ON FALSE ALLEGATIONS.?


Issue

Is the lodging of a grievance the exercise of a right under the LRA? Can an employer dismiss an employee for lodging a baseless grievance against another employee without it being regarded as an automatically unfair dismissal?

Summary

An employer may dismiss an employee if he or she has lodged a grievance against another employee which is false. Dismissing an employee for doing so does not amount to an automatically unfair dismissal because the lodging of a grievance is not the same as exercising a right conferred by law.

Facts

In the case of DBT Technologies (Pty) Ltd v Garnevska (JA61/2018) [2020] ZALAC 26 the Labour Appeal Court (“LAC“) had to consider the above issue. The facts of the matter are briefly as follows: Mariela Garnevska (“Ms Garnevska“) was employed by DBT Technologies (Pty) Ltd (“DBT“) in January 2010. At the time of her dismissal she was the Senior Financial Planning and Analyses Manager.


On 2 February 2015, a meeting was held to in order to resolve a contractual dispute between DBT and one of its subcontractors. Mr Gregory Mailen (“Mr Mailen“), a Project Director employed by DBT attended the meeting. Mr Mailen and Ms Garnevska openly disagreed about a contractual dispute at the meeting. Mr Mailen left the meeting before it concluded. Ms Garnevska alleged that on his way out of the meeting he hit her over the head with a file. Ms Garnevska reported the incident to her supervisor, went to visit a doctor and then filed a grievance against Mr Mailen. The essence of her grievance was that Mr Mailen had assaulted her. A grievance inquiry followed which found that the assault was not proven and the grievance was dismissed. Ms Garnevska unsuccessfully appealed the finding.


DBT then charged Ms Garnevska with misconduct and called her to a disciplinary enquiry. In the disciplinary enquiry, Ms Garnevska was found to have committed gross misconduct for falsely accusing Mr Mailen of assault and for preventing other employees from performing their duties. The chairperson of the enquiry recommended that Ms Garnevska be dismissed. This finding was upheld on appeal and Ms Garnevska was dismissed for dishonesty.

Ms Garnevska referred a dispute to the Labour Court, alleging that her dismissal was automatically unfair. She claimed that lodging a grievance was the exercise of a right under the LRA and that she had been dismissed for doing so. Her dismissal therefore, she further claimed, fell within section 187(1)(d) of the LRA.

DBT denied that her dismissal was automatically unfair and that the disciplinary process was instituted as a result of the grievance lodged by Ms Garnevska. They contended that the disciplinary process was instituted on the grounds of misconduct, specifically the false allegation of assault made by her against Mr Mailen.

The Labour Court found that the predominant cause of the dismissal was the lodging of the grievance and not the alleged dishonest or false accusation against Mr Mailen. The Labour Court held that the dismissal was automatically unfair as contemplated in section 187(1)(d) of the LRA and ordered compensation to be paid to Ms Garnevska. In essence, the Labour Court found that the reason Ms Garnevska was dismissed was because she ‘took action, or indicated an intention to take action, against the employer by exercising a right conferred by’ the LRA.

DBT then took the Labour Court’s judgment on appeal to the LAC.


LAC’s evaluation

The LAC found that in determining whether a dismissal is automatically unfair, an enquiry into its causation must be undertaken. It must also be determined whether the reason for the dismissal is one of the grounds listed in section 187(1) of the LRA. In terms of section 187(1)(d) of the LRA, the inquiry is whether the “employee took action, or indicated an intention to take action, against the employer” by exercising a right provided for in the LRA or participating in proceedings contemplated in the LRA. Factual causation is established by asking whether the dismissal would have occurred had the employee not taken action against the employer. If yes, then the dismissal is not automatically unfair. However, if no, it does not mean that the dismissal is automatically unfair as there would need to be legal causation established. Legal causation is established where the reason was the main, dominate, proximate or most likely cause of the dismissal.

The LAC held that there was no evidence that at the time of her dismissal, Ms Garnevska had taken action or indicated to take action against DBT. The only action taken against the employer was the referral of the dispute about her dismissal to the CCMA in terms of the LRA. The LAC also held that the right to file a grievance is not provided for by the LRA nor does the LRA establish grievance mechanisms or proceedings. The right to file and process a grievance is based in contract. It is derived from “grievance procedure incorporated as part of the implied terms of the individual contract of employment”.

Even if it is established that a right in terms of the LRA was exercised, it would still need to be established that the dismissal was due to the employee taking action or the intending to take action against the employer prior to the dismissal and that such ‘pre-dismissal action’ was the real reason for the dismissal. The LAC held that section 187(1)(d) of the LRA is not concerned with the filing of a grievance. A request by an employee to discipline a fellow employee for an alleged misconduct does not fall within the ambit of the conduct contemplated in section 187(1)(d). Should there be evidence to prove that an employee was dismissed for filing a legitimate grievance, the dismissal would amount to an unfair dismissal as it would be for a substantively unfair or invalid reason. The LAC found that on the facts, no automatically unfair dismissal had occurred and the LAC upheld the appeal.

Importance of the case

The lodging of a grievance does not amount to an employee taking action, or indicating an intention to take action, against the employer. The mere fact that an employee has lodged a grievance is therefore not a bar on an employer taking action against the employee where the employee has committed a misconduct by lodging the grievance such as, for instance, where the allegations contained in the grievance are false or dishonest.

We are labour law practitioners. We represent and presides on all labour disputes. We appear before

20/01/2021

UNILATERAL CHANGE TO EMPLOYEES RETIREMENT AGE MAY CONSTITUTE AN AUTOMATICALLY UNFAIR DISMISSAL IN TERMS OF THE LABOUR RELATIONS ACT AND UNFAIR DISCRIMINATION IN TERMS OF THE EMPLOYMENT EQUITY ACT .

ISSUE

Whether an employer may unilaterally change an employee’s retirement age and, if it does, whether doing so would amount to an automatically unfair dismissal and result in unfair discrimination.

Summary

An employer cannot unilaterally change an employee’s retirement age. Should the employer do so and terminate the employee’s employment, the dismissal may constitute an automatically unfair dismissal and amount to unfair discrimination.

Facts

In the case of BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and Another (2020) 41 (ILJ) 1877 (LAC) the Labour Appeal Court (“LAC“) had to consider the above issue. The facts of the matter are briefly as follows: Mr Deppe was employed by BMW for nearly 31 years. At the time he commenced his employment with BMW, the retirement age stipulated in the staff handbook was 65 years. Whilst his contract of employment did not stipulate an age for retirement it did refer to company policies which included the handbook.

Mr Deppe was a member of the BMW Pension Fund (“Fund“). When he joined the Fund, its rules also stipulated that the age of retirement was 65 years.

On 1 February 1994 the chairman of the Fund announced that there would be a change in the retirement age from 65 years to 60 years. However, the chairman allowed the Fund members who were already over 50 years of age to indicate whether they wanted to retire at 65 years or at 60 years. Mr Deppe, who testified that he was not yet 30 years old at the time, indicated he wished to retire at 65 years. He completed a survey which recorded his wishes as such. Mr Deppe’s unchallenged evidence was that he returned a hardcopy of the survey to BMW. He testified further that he chose to retire at 65 years because he wanted to keep his options open in case he were to decide to retire earlier in the future. This evidence was also left unchallenged.

On 28 March 1995 an inter-office memorandum which confirmed that the retirement age had been amended to 60 years. The memorandum also indicated that employees who wished to retire at 65 years would be able to do so, regardless of their age at the time of making the election. Mr Deppe confirmed receipt of this document but did not view it as being applicable to him because he had already expressed his choice in the survey. Approximately two months later BMW issued a managerial notice which was placed on its noticeboards and recorded the change in retirement age. Employees were invited to communicate their concerns with the change to the Personnel Department.

In 1995 BMW changed Mr Deppe’s retirement age from 65 years to 60 years and the Fund rules were amended to reflect this. Mr Deppe was first alerted to this change when he received his 1995 pension benefit statement. He assumed that this had been a mistake and raised the issue with Ms Greyling, a secretary at the time. Ms Greyling undertook to rectify the issue but never did. Subsequently, Mr Deppe objected on five occasions to the change in retirement age, even raising a grievance regarding the issue. His retirement age was not changed.

On 31 October 2015 Mr Deppe was forced to retire when he turned 60. He referred a dispute to the Labour Court challenging the fairness of his dismissal.

It emerged during the proceedings that in 1997 provident fund members were given an election to change their retirement age unlike pension fund members, such as Mr Deppe. It also emerged that Mr Deppe had not been given the same election before BMW did so, without his consent.

The Labour Court held that Mr Deppe’s dismissal constituted an automatically unfair dismissal in terms of section 187(1)(f) of the LRA and amounted to unfair discrimination based on age in terms of section 6(1) of the Employment Equity Act 55 of 1998 (“EEA“). BMW took the Labour Court’s judgment on appeal to the LAC. The issues of the remedy and cross-appeal will not be dealt with in the article.

LAC’s evaluation

The LAC found that Mr Deppe was not given an opportunity to change his retirement age and did not acquiesce to any such changes. To the contrary, he made his wishes known on a number of occasions that he wanted to retire at 65. He never abandoned his objections to the lowering of his retirement age.

The LAC also found that had Mr Deppe not reached the age of 60, he would not have been dismissed. While the LAC found that Mr Deppe’s contract of employment allowed for his retirement age to be changed BMW chose to provide its employees with an election. Mr Deppe was however excluded from exercising such an election. In the circumstances, the LAC found that Mr Deppe had made out a prima facie case that his dismissal was automatically unfair as BMW had discriminated against him on the grounds of age. Whilst BMW argued, in terms of section 187(2)(b) of the LRA, that Mr Deppe was dismissed because he reached the normal age of retirement of employees in the industry, the LAC found that the normal retirement age applies when there is no agreed retirement age between the employer and employee. The notion of a ‘normal retirement age’ was therefore inapplicable in this matter. Mr Deppe was dismissed before reaching his agreed age of retirement which was 65 years. The LAC held that the dismissal of Mr Deppe when he reached the age of 60 was not based on an agreed age of retirement. This was a retirement age imposed on Mr Deppe without his consent. The LAC held that BMW had failed to discharge the onus to prove that the dismissal was not automatically unfair.

On the issue of whether the dismissal amounted to unfair discrimination in terms of the EEA, the LAC held that Mr Deppe’s dismissal also amounted to unfair discrimination on the grounds of age in terms of section 6(1) of the EEA. BMW had failed to prove on a balance of probabilities that it had not unfairly discriminated against Mr Deppe or that such discrimination was rational and not unfair or justifiable.

Importance of the case

If the age of retirement is changed without the employee’s consent and he is subsequently ‘retired’ at such earlier date this may amount to an automatically unfair dismissal and unfair discrimination. In the absence of consent, an employer cannot unilaterally change an employee’s retirement age.

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28/11/2020

CAN AN EMPLOYEE AVOID A SANCTION OF DISMISSAL BY SUMMARILY RESIGNING PRIOR TO THE SANCTION BEING IMPOSED ?

The recent Labour Court judgment of Mthimkhulu v Standard Bank of South Africa (Standard Bank) (delivered on 18 September 2020) considered the legal effect of a summary resignation after a disciplinary enquiry had been held, but prior to the announcement of a sanction of dismissal.

The issue to be determined by the Labour Court in this matter was whether an employee who awaits the outcome of a disciplinary enquiry can avoid a sanction of dismissal by resigning with immediate effect (where contractually bound to a 30 day’ notice period) before his or her employer announces the sanction. In the words of the Labour Court, the court was called upon to determine the following contention: “The applicant before me takes a view that being the first man on the ball, the respondent forfeits the right to tackle and play the ball.”

Mthimkhulu was employed by Standard Bank on 1 June 2016. Allegations surfaced that between February 2020 and May 2020, Mthimkhulu misconducted himself in a grossly dishonest and fraudulent manner. He was called to a disciplinary enquiry on 17 August 2020 and on 19 August 2020 was subsequently found guilty of the charges levelled against him. The chairperson of the hearing then granted both Standard Bank and Mthimkhulu an opportunity to make submissions of aggravating and mitigating factors prior to handing down a sanction.

Prior to the announcement of the disciplinary sanction, Mthimkhulu then, in breach of his contract, resigned with immediate effect on 21 August 2020. In light of his resignation, Standard Bank sought to hold Mthimkhulu to his contractual obligation to serve a 30-day notice period. On 24 August 2020, Standard Bank imposed a sanction of dismissal against Mthimkhulu pursuant to the finding of guilt on 19 August 2020.

Mthimkhulu resisted the sanction, contending that Standard Bank no longer had jurisdiction over him owing to his resignation and that Standard Bank should abandon and nullify the sanction of dismissal. This contention was rejected by Standard Bank.

Dissatisfied with the approach taken by Standard Bank, Mthimkhulu approached the Labour Court for urgent relief to set aside his dismissal as unlawful, as opposed to being unfair, on the basis that he had already resigned and his contract had terminated when the outcome of dismissal was announced. Mthimkhulu argued that the matter was urgent owing to the fact that he had an interview on 18 September 2020 to become a pupil in 2021 with the intention to practice as an advocate at the Bar and that a negative disciplinary record would prejudice him in this regard. The court was not of the view that the matter was urgent or that it had jurisdiction to hear the matter but exercised its discretion to hear the matter as one of urgency notwithstanding.

In considering the urgent application, the Labour Court confirmed that the law is clear that a resignation is a unilateral act which is effective regardless of the acceptance of the resignation by the employer. For the court the critical question was whether the termination of the employment contract upon the above facts had taken effect or not.

The court referred to the Constitutional Court case of Toyota South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others (2016) 37 ILJ 313 (CC) in which Zondo J (for the minority) concluded that because a valid resignation is incapable of being withdrawn, an employer has no right to conduct disciplinary proceedings once resignation has taken effect. The question, however, was when the resignation took effect. In the Toyota matter, the lawfulness of the resignation letter was not in dispute therefore the resignation took effect on 31 March 2011 according to the resignation letter. On 24 March 2011, seven days earlier, the employee was disciplined and dismissed. The Constitutional Court as per Zondo J held that he was dismissed prior to the employment contract terminated by resignation.

The court in Mthimhkulu drew a distinction between an employer’s right to discipline an employee following a summary resignation and the right to announce the outcome of a disciplinary enquiry that was already concluded at the time of the resignation. The court held that the inability to discipline an employee in the context of the Toyota judgment does not equate to an employer being unable to deliver the outcome of the disciplinary process which had been completed at the time of resignation.

The court found that Mthimkhulu has repudiated his contract of employment by failing to work his notice period as required by his contract of employment and that Standard Bank as the aggrieved party had an election to cancel the contract and sue for damages, alternatively to seek specific performance. Standard Bank elected not to cancel the contract.

The Labour Court then rejected the reasoning in the judgment of Naidoo and another v Standard Bank of South Africa [2019] 9 BLLR 934 (LC) in terms of which Nkutha-Nkonwana J found that an employer who does not accept a repudiation may not proceed with a disciplinary hearing after the date of resignation of an employee who summarily resigned in breach of his or her contract of employment without first approaching the court for an order for specific performance to comply with the lawful resignation period.

The court in Mthimkhulu held that the correct position is as follows:

“An aggrieved/innocent party by making an election not to rescind as a party to the contract, keeps the contract alive. Should the aggressor persist with the repudiation the aggrieved party may approach a court of law on the strength of the same contract to compel the aggressor to comply with its contractual obligation. What keeps the contract alive is not an order for specific performance but an election by the aggrieved party.”

The court held further that the fundamental principle is that a breach of contract (in giving short notice) is not what brings a contract to an end, rather it’s an aggrieved party’s election to accept the repudiation in light of the breach that ends the contract. Accordingly, the summary resignation by Mthimkhulu repudiated the contract but did not bring about the end of the contract as he was legally required to work his notice period. Standard Bank elected not to accept the repudiation which acceptance would have brought about a termination of the contract. This meant that the contract of employment had not come to an end. The court concluded that resignation prior to the announcement of a sanction of dismissal therefore has no legal effect where the contract of employment subsists and it is not necessary for an employer to first bring an application to compel the employee to perform in terms of the contract before it could impose the sanction.

On the matter of jurisdiction, the court held that where an applicant alleges that a dismissal is unlawful, as Mthimkhulu contended in his application, as opposed to the dismissal being unfair, the Labour Court has no jurisdiction to hear the matter as there is no such a remedy in the Labour Relations Act 66 of 1995. The court held that it was not empowered to make a determination as to lawfulness.

As the court held that it had no jurisdiction to hear the matter, the finding in respect of the termination of the contract of employment is obiter (not essential to the decision of the court) and not legally binding on another court.

Going forward Zondo J’s confirmation in the Toyota-case that no disciplinary steps can follow after the date upon which the contract ended, remains the law.

What the Mthimkhulu case highlights is the importance for an employer to make an election to accept or reject the repudiation of an employee who resigns in breach of the contract of employment. The difference between the Mthimkhulu-case and the Naidoo-case lies in what an employer is permitted to do in respect of discipline during the remaining notice period after the summary dismissal if it elects to keep the contract alive. According to Mthimkhulu it is not necessary to first obtain an order for specific performance if only the sanction is outstanding. The last word on this topic has not been spoken.

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