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02/06/2026

CONSTRUCTIVE DISMISSAL - EMPLOYEES SHOULD HAVE A THICK SKIN
In Maleka v Boyce NO & Others (2026) 47 ILJ 839 (CC), the employee was part of ADT’s executive committee and reported to the managing director of ADT (“the MD”). Ahead of the planned acquisition of ADT by the Fidelity Security Group (“FSG”), the employee was informed that ADT had appointed a new financial director (“the FD”), and that, once ADT was acquired by FSG, the FD would also oversee the IT portfolio which the employee headed. This meant that the employee would no longer be reporting to the MD, but to a person on his level, the FD. The employee resigned before the changes to his working conditions were implemented, and alleged that the unilateral change to his conditions of employment had rendered his employment so intolerable that he had no option but to resign.
A commissioner at the CCMA found that the employee’s argument that the change in his reporting line constituted a demotion, which made his continued employment intolerable was without substance, in view of the fact that his title, position on Exco, salary, roles and responsibilities remained the same. The commissioner also concluded that because the proposed change had not materialised, and the employee failed to exhaust ADT’s internal grievance procedures, which he was required to follow, he was not constructively dismissed. The Labour Court agreed with the findings of the CCMA, and dismissed the employee’s application for review.
On appeal, the Labour Appeal Court found that the employee could have averted his resignation and properly resolved the dispute, and that his failure to pursue other feasible remedies short of resigning was not, objectively speaking, justified nor reasonable.
On further appeal, the Constitutional Court confirmed the three requirements for constructive dismissal namely: 1) the employee must have terminated the contract of employment, 2) the reason for the termination of the contract must be that continued employment had become intolerable for the employee, and 3) it must have been the employer who made continued employment intolerable.
With regard to intolerability the Court stated the following:
“[73] In my view, intolerability means something more than just conduct (on the part of the employer) or working conditions, which simply result in difficult, unpleasant or stressful situations for the employee. It would not be enough that the employer’s conduct is merely rude, uncompromising or unbecoming. Likewise, ‘even a breach of the employment contract, deductions from salary, or unfair disciplinary actions would not per se establish intolerability’. The employee would need to show that such conduct is characterised by what can objectively be construed as unendurable or agonising and he or she must show that the perpetrator is their employer. In other words, it must be clear that the employer’s conduct was the cause for complaint and that it brought the employee’s tolerance to a breaking point.
[74] It follows that termination in these circumstances must be a measure of last resort. As I pointed out already, and as the authorities show, the threshold for establishing intolerability under s 186(1)(e) of the LRA is high. And so it should be. This is to avoid an unhealthy situation in a workplace where employees, who have become disgruntled and dissatisfied for flimsy reasons, would simply walk out and thereafter claim a constructive dismissal. Such a situation would be at odds with the prescripts of fairness in labour practices, which requires that ‘an employee who is dissatisfied with his employer’s conduct, at first, offers the employer an opportunity to redress the dissatisfaction. Employees should refrain from hastily resigning and then arguing that the employment relationship had become unbearable”.
The Court also found that at its most fundamental level, the Labour Relations Act provides a mechanism for resolving disputes, which in turn helps to maintain harmonious employment relations. In instances where a grievance process is available to an employee, and which would, if applied, resolve the cause of complaint, the employee will ordinarily be required to follow it. The court therefore agreed with the CCMA’s finding that the employee’s failure to lodge a grievance counted against him. The Court found that the employee had failed to prove constructive dismissal.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

22/04/2026

BASIC CONDITIONS OF EMPLOYMENT ACT - EARNINGS THRESHOLD INCREASE FOR 2026
The earnings threshold, in terms of Section 6(3) of the Basic Conditions of Employment Act (“BCEA”), has been increased to R 269,600.90 per year (R 22 466.74 per month), with effect from 1 May 2026. The current earnings threshold is R 261,748.45 per year. This represents an increase of 3%.
The earnings threshold has the effect that the limitations or protections afforded by certain sections of the BCEA, do not apply to employees earning above the new threshold. These sections are:
- section 9 (hours of work);
- section 10 (overtime);
- section 11 (compressed working week);
- section 12 (averaging of hours);
- section 14 (meal intervals);
- section 15 (daily and weekly rest periods);
- section 16 (pay for work on Sundays)
- section 17 (2) (night work); and
- section 18 (3) (public holidays on which the employee would not ordinarily work).
For purposes of the new threshold “earnings” means the regular annual remuneration before deductions, i.e. income tax, pension, medical and similar payments, but excluding similar payments (contributions) made by the employer in respect of the employee. Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked, are not regarded as remuneration.
The earnings threshold also has an effect on certain other provisions of the BCEA, the Labour Relations Act (LRA), and Employment Equity Act (EEA) namely; 1) Which employees are regarded as permanent employees in terms of s198B of the LRA, 2) The ability to claim any outstanding amount due to the employee, in terms of the BCEA, the National Minimum Wage Act, a contract of employment, a sectoral determination, or a collective agreement, in the CCMA, 3) Whether unfair discrimination disputes may be referred to the CCMA, as opposed to the Labour Court, in terms of s10(6) of the EEA.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

16/04/2026

IS A MUTUAL SEPARATION AGREEMENT PERMISSIBLE IN THE CONTEXT OF A PROPOSED RETRENCHMENT?
In WBHO Construction v Masenya N.O. and Others (JA124/24) [2026] ZALAC 10, the employer approached the employee and discussed the employer’s operational needs and the possibility of transferring the employee to the Northern Cape, where his skills were needed. The employee declined the transfer because he wanted to be with his family. Thereafter the parties signed a Mutual Separation Agreement (MSA), and the employee received severance pay.
The employee referred an unfair dismissal dispute to the CCMA, which found that the agreement was not an MSA, but that the employer retrenched the employee and failed to comply with the requirements of s189 of the Labour Relations Act (LRA). An order reinstating the employee was issued.
On review the Labour Court (LC) held that the employer's failure to comply with the provisions of s189 of the LRA was fatal and made the employee's dismissal unfair, and that an employer cannot use a MSA to circumvent the procedure set out in s189 of the LRA.
On appeal, the Labour Appeal Court inter alia relying on Wells v South African Alumenite Company, where the Court held that:
“If there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and enforced by the courts of justice.”
and Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotels Interests (Pty) Ltd, where the Court stated that:
‘The privity and sanctity of contract entails that contractual obligations must be honoured when the parties have entered into the contractual agreement freely and voluntarily. The notion of the privity and sanctity of contracts goes hand in hand with the freedom to contract. Taking into consideration the requirements of a valid contract, freedom to contract denotes that parties are free to enter into contracts and decide on the terms of the contract’
made the following key findings:
1. There was no finding that the employee was coerced into signing the MSA and that both parties entered into and signed the MSA voluntarily;
2. The conclusion by the LC that the employer avoided the s189 processes is unfounded, as there is nothing preventing parties from entering into a MSA at any time when operational requirements are discussed, even informally; and
3. The MSA being valid and enforceable, there is no question of dismissal, and as such, the CCMA had no jurisdiction to entertain the employee’s dispute.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

05/02/2026

NATIONAL MINIMUM WAGE INCREASE FROM 1 MARCH 2026
With entry from 1 March 2026, the national minimum wage will increase from R28.79 per ordinary hour worked, to R 30.23 per ordinary hour worked. This represents an increase of 5%. This increase will also be applicable to farm and domestic workers, and translates to a minimum daily wage of R 241.84 (eight-hour day) and R 272.07 (nine-hour day).

09/10/2025

EQUAL PARENTAL LEAVE RIGHTS FOR ALL CLASSES OF PARENTS
The Constitutional Court has, in Werner van Wyk v Minister of Employment and Labour (CCT 308/23), confirmed the declaration made by the High Court, that sections 25, 25A, 25B and 25C of the BCEA, dealing with maternity, parental, adoption and commissioning parental leave, together with the corresponding sections 24, 26A, 27 and 29A of the UIF Act, are invalid and inconsistent with the Constitution to the extent that they unfairly discriminate between different classes of parents as to the length of parental leave available to parents and as to the unemployment benefits to which they are entitled, and the periods for which unemployment benefits are paid.
This decision significantly alters the previous legal framework, which unfairly distinguished between maternity, parental and adoption leave, and unfairly discriminated against parents who were not the birth mother, specifically, fathers, adoptive parents, and commissioning parents, by granting them only 10 days of parental leave, while the birth mother received four months.
The Court’s declarations of constitutional invalidity are suspended for a period of 36 months from 3 October 2025, to afford Parliament an opportunity to remedy the constitutional defects giving rise to the constitutional invalidity.
Pending the coming into force of any remedial legislation as contemplated above, the impugned provisions of the BCEA shall inter alia be as follows,
1. Different classes of parents, regardless of gender, s*x, colour or circumstances, have equal parental leave rights in that they will now be entitled to four (4) months and 10 days of leave, which they may share between them, either concurrently or consecutively, or partly concurrently and partly consecutively, save that any such parental leave, must be taken by the party concerned in a single sequence of consecutive days. This allows for greater flexibility in managing childcare responsibilities.
2. An employee, who is an adoptive parent, no longer just has ten consecutive weeks adoption leave, but is now entitled to the parental leave referred to in paragraph 1. If an adoption order is made in respect of two adoptive parents, both parties are entitled in the aggregate to four (4) months and ten days’ adoption leave, on the same basis as in paragraph 1.
3. A commissioning parent in a surrogate motherhood agreement is now also entitled to the parental leave referred to in paragraph 1. Where there are two commissioning parents, they shall each be entitled in the aggregate to four (4) months and ten days’ commissioning parental leave, on the same basis as in paragraph 1.
The payment of parental benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act
This judgment will have significant implications for employers, who will have to adjust their leave policies accordingly.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

16/09/2025

CANCELLATION OF FIXED-TERM CONTRACT WITHOUT A TERMINATION ON NOTICE PROVISION
In Sedumedi v Sefako Makgatho Health Sciences University (2025) 46 ILJ 2015 (LC), the employee was appointed as Director: Institutional Advancement and Internationalisation by the university on a five-year fixed-term contract from 1 October 2018 to 31 September 2023. In June 2021 the university notified the employee that his position was likely to become redundant through the creation of a new position, to which the employee indicated, he expected to be automatically appointed because the newly created post replaced his position. The university declined and advertised the new position. The employee did not apply, but was retrenched for operational reasons on 24 February 2022.
The employee approached the Labour Court in terms of s 77(3) of the Basic Conditions of Employment Act, claiming the balance of his contract, and arguing that unless he breached a material term of the contract, or the contract otherwise provides for termination on notice, the employer was not entitled to prematurely terminate same prior to its natural termination date.
The university’s main defence was that, on a proper interpretation of the appointment letter read with the university’s termination policy, the university was legally entitled to retrench the employee with one month’s notice for operational reasons.
The court noted that the proper approach to contractual interpretation is first to consider the text of the document and then in a “unitary exercise” to consider the text contained in the document, then how the text is situated within its own textual context, then its extra-textual context, then finally by considering the purpose of the document. The court found that a straightforward analysis of the text of the appointment letter did not support the university’s claim that it had the contractual right to terminate the employee’s contract on notice prior to its natural end date on 31 September 2023.
However, before proceeding to a contextual and purposive analysis, the court stated that it was important to consider whether the termination policy formed part of the employee’s contract of employment. The court found that the policy did not purport to amend the terms of the employee’s fixed-term contract, and therefore it did not matter whether the appointment letter incorporated the termination policy as a managerial policy or as a contractual term.
The court was thus satisfied that the employee’s fixed-term contract did not entitle the university to retrench the employee on notice based on its operational requirements (or indeed on any basis other than his material breach of the contract).
Because the university was not entitled to terminate the employee’s contract of employment; by doing so it had repudiated the contract and the employee sued for damages. The quantum of damages was the difference between the actual loss suffered by the employee (the sum due to him for the unexpired period of the contract), less any sum he earned, or could reasonably have earned, during that period in similar employment had he taken reasonable steps to find such employment. The onus rested on the university to prove that the employee had not taken reasonable steps to mitigate his damages, which it had failed to discharge. The court accordingly found that the employee was entitled to the amount claimed with costs.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

16/09/2025

PERSISTENT INTERMITTENT ABSENCE FROM WORK DUE TO ILL-HEALTH
In Atwell and Capitec Bank Ltd (2025) 46 ILJ 1796 (CCMA), after the employee was employed as a sales consultant for 12 years, and her husband passed away in 2019, she experienced depression, and took temporary incapacity leave. In September 2024 her manager noted that she had taken 57 days of sick leave, and that her work attendance was sporadic. Because her medical condition did not improve, she continued to take sick leave, which had a negative impact on her fellow employees, who had to do her work. The bank investigated the employee’s absence without her involvement, and no medical report was provided by the employee or obtained by the bank. After the investigation the employee was notified to attend an enquiry.
At the enquiry, the employee suggested a shorter work week or transfer to a quieter branch. The employee claimed that not everything had been done to accommodate her and that she had been unaware of the investigation. After the enquiry, she was dismissed for incapacity.
The commissioner, at CCMA arbitration, followed the principles laid down in AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC) and Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 15 ILJ 304 (LAC) regarding the process that should be followed in instances of persistent absence from work arising out of ill-health. From a procedural fairness point of view, this inter alia involves the employer consulting the employee about his or her ailment, and together trying to find a solution to the problem, which includes a consideration of the provision of suitable alternative employment, and that each case must be looked at for its own particular facts and circumstances.
The commissioner found that there had been no consultation with the employee about her ailment and no attempt had been made to find a solution in consultation with her. He noted that the process followed by the employer was like that in misconduct cases, with a unilateral investigation, charges, and a hearing. Her dismissal was ruled procedurally unfair.
Regarding substantive fairness, the commissioner considered whether the employer could reasonably be expected to continue the employment relationship taking into consideration the nature of the incapacity; the cause of incapacity; the likelihood of recovery, improvement, or recurrence; the period of absence and its effect on the bank’s operations; the employee’s work record and her length of service.
The commissioner found that the employer failed to follow the Code of Good Practice: Dismissal, insofar as it related to medical incapacity and to explore all alternatives. Accordingly, the employee’s dismissal was substantively unfair. The employee was reinstated and the bank ordered to pay her backpay of R 80 000.00.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

20/06/2025

INTOXICATION AT WORK OR ALCOHOL DEPENDENCY
In National Union of Metalworkers of SA on behalf of Masinga v Toyota Boshoku SA (Pty) Ltd (2025) 46 ILJ 1508 (MEIBC) the employee failed a breathalyser test on two consecutive days when reporting for duty. The employee was dismissed due to the employer’s zero-tolerance policy towards alcohol. In unfair dismissal proceedings, the arbitrator took issue with the employee’s denial that he consumed alcohol on the one hand, and reliance on an alleged alcohol dependency on the other. The arbitrator rejected the employee’s claim that he suffered from alcohol dependency and ought to have been afforded help, in the form of an Employee Assistance Program, instead of being dismissed. The arbitrator found that the onus was on the employee to prove that he suffered from alcohol dependency and that he had sought assistance timeously, ruling that he could not wait until he was caught under the influence of alcohol to volunteer the information of his dependency just to avoid the consequences. Accordingly, the arbitrator found that dismissal was an appropriate sanction and was substantively and procedurally fair.

09/06/2025

NEDLAC LABOUR LAW REFORMS
Some of the amendments, negotiated by Organised Labour, Organised Business, and Government, at NEDLAC, to the following labour laws, to be implemented towards the end of 2025, are the following:
A. LABOUR RELATIONS ACT
1. EXTENSION OF COLLECTIVE AGREEMENTS
Collective agreements, concluded in bargaining councils, regulating terms and conditions of employment, will not bind an employer of a new business that employs less than 50 employees, and that employer’s employees. A “new business” is one that has been in operation for less than two years, but excludes: (a) a new employer contemplated in section 197(1), and (b) a business formed by the division or dissolution of any existing business.
2. LIMITATION OF REMEDIES AND COMPENSATION FOR HIGH-PAID EMPLOYEES
High-paid employees (those earning more than R 1.8 million per annum), for the period from May 2024 to April 2025, will only be entitled to reinstatement in cases of automatically unfair dismissal, but in other dismissals, will be restricted to compensation as a remedy.
Compensation that could be paid to high-paid employees, in unfair dismissal and unfair labour practices cases, will be capped to a maximum amount of R 1.8 million, except in cases of automatically unfair dismissals and unfair labour practices involving whistleblowing.
The Minister will issue a notice, which will take effect on the same date as the applicable provisions in the Amendment Act, amending the amount of R 1.8 million, in line with the Consumer Price Index, for the period from 30 April 2025, until the date that the provisions come into effect.
3. QUALIFYING PERIOD FOR FULL PROTECTION AGAINST UNFAIR DISMISSAL
During the first three (3) months of employment, or, if it is a longer period, a period of probation that is specified in a contract of employment and is both reasonable and operationally justifiable, new employees will have limited protection against unfair dismissal, and will only be able to bring claims for unfair dismissal involving an automatically unfair dismissal or discrimination.
4. INQUIRIES BY ARBITRATORS IN DISMISSAL CASES
The required consent of an employee, for inquiries by arbitrators in dismissal cases, may be given in a contract of employment.
5. REVISION OF UNFAIR LABOUR PRACTICE DEFINITION
Disputes relating to promotion, demotion, probation, training and benefits, and a refusal to reinstate or re-employ former employees, will be removed from the definition of an unfair labour practice. Therefore, justiciable unfair labour practices will be limited to disputes about unfair suspensions, unfair disciplinary action short of dismissals, and protected whistleblowing. However, a transitional provision will apply delaying its application to the public service for one year to allow collective agreements dealing with issues such as promotion disputes to be negotiated in the public service bargaining councils.
6. TEST FOR PROCEDURAL FAIRNESS
A fair procedure will be one in which the employee has been given an adequate and reasonable opportunity to respond to the reason for the dismissal. This will not apply to retrenchments and is consistent with the Dismissal Code agreed to by the parties for publication.
B. BASIC CONDITIONS OF EMPLOYMENT ACT (BCEA)
1. TWO WEEK’S SEVERANCE PAY
Severance pay is increased to at least two week’s remuneration for each completed year of continuous service with that employer, provided that the entitlement to severance pay equal to two week’s remuneration only applies to a completed year of service with that employer commenced after the commencement of the Amendment Act.
2. “ON CALL” WORKERS
New provisions, applicable to Employees who earn less than the threshold determined in terms of section 6(3) of the BCEA (currently R 261 748.45) (“the threshold”), and who are required to be available for work, will be introduced.
3. CONSOLIDATION OF PROCEEDINGS
If an employee institutes proceedings in respect of any claim under an employment law, the Labour Court or the arbitrator hearing the matter, may also determine any claim for an amount that is owing to that employee in terms of the BCEA or the National Minimum Wage Act.
C. EMPLOYMENT EQUITY ACT (EEA)
Disputes which remain unresolved after conciliation, may, at the election of the employee, be referred to the CCMA for arbitration, if the employee alleges unfair discrimination on the grounds of harassment, or, in any other case, that employee earns below the threshold.

EMPLOYMENT EQUITY ACT: CONTROVERSIAL SECTORAL NUMERICAL TARGETSIn terms of Section 15A of the Employment Equity Act (“EE...
07/05/2025

EMPLOYMENT EQUITY ACT: CONTROVERSIAL SECTORAL NUMERICAL TARGETS
In terms of Section 15A of the Employment Equity Act (“EEA”), the Minister of Employment and Labour has, by notice in the Government Gazette dated 15 April 2025, (see below) identified national economic sectors, and set numerical targets for those sectors to ensure the equitable representation of suitably qualified people from designated groups (based on race, gender, and disability) at all occupational levels in the workforce.
Only “designated employers,” as defined in the EEA (those with 50 or more employees; municipalities as referred to in Chapter 7 of the Constitution; organs of state as defined in Section 239 of the Constitution, excluding the National Defense Force, National Intelligence Agency, and South African Secret Service; or employers designated as such by a collective agreement concluded in terms of Sections 23 or 31 of the Labour Relations Act, to the extent provided in the agreement), are required to comply with the sectoral numerical targets by aligning their employment equity plans with these targets or providing justifiable reasons for non-compliance.
Non-designated employers are, except where otherwise provided in the EEA, exempt from the affirmative action obligations under Chapter III of the EEA, including compliance with sectoral numerical targets. However, all employers seeking state contracts, regardless of designation, must obtain a certificate of compliance. For designated employers, this includes compliance with Chapters II and III, including sectoral numerical targets. For non-designated employers, compliance is limited to Chapter II (prohibition of unfair discrimination).
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

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