The act of suspension is widely misunderstood by employers which is problematic in terms of any unfair labour practice.

Suspension can be divided into two categories:  precautionary suspension and punitive suspension.

Punitive suspension

Punitive suspension refers to when the employer imposes a sanction after finding the employee guilty of misconduct at a disciplinary hearing.

Precautionary suspension

Precautionary suspension is imposed on an employee before a disciplinary hearing date to facilitate the completion of the investigation and ensure the proceedings are conducted efficiently and without delay.  Any suspension given prior to a disciplinary hearing needs to be fair and cannot be used as a sanction against the employee, as the allegations of misconduct have not yet been proven in a fair disciplinary hearing process.

Precautionary suspension is generally used:

• if the employee can potentially interfere with witnesses or with the investigation into the alleged misconduct;
• when the employee’s presence on the premises prior to the disciplinary hearing may be disruptive to the workplace;
• when the employee’s presence may be a threat to his/her own safety or the safety of others;
• when the employee can potentially tamper with the evidence; and
• when there is a very serious offence which has caused a break in the trust relationship, such as theft or dishonesty, mainly as a precautionary step to prevent further loss or damage.

For precautionary suspension to be fair, legislation requires that:

• the employer’s relevant disciplinary code/policies are followed;
• the suspension should not be used to punish the employee;
• the employee should be informed of the reason(s) for and duration of the suspension; and most importantly
• the employee should be remunerated in full for the duration of the suspension.

The period of precautionary suspension is always payable to the employee.  The employee cannot be punished or prejudiced for possibly delaying the disciplinary process as such delays would always be at the employer’s cost.

Case study

The employee should be given a reasonable opportunity to give reasons why he/she should not be suspended, however the Constitutional Court confirmed that this is not always necessary – as in the case of Long v SA Breweries (Pty) Ltd (2019) 40ILJ 965 (CC). The court stated that due to the precautionary nature of a so called “precautionary suspension”, an employer is not obliged to provide an employee who receives a written notice of suspension with a chance to make representations before the suspension takes effect, unless a specific provision is made in the employer’s disciplinary code or workplace rules that requires it.

Employers should take note that our courts have also taken a grim view of suspending employees for long periods of time without justifiable reasons. A classic example of this was in the case of Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC), where the employee was kept on suspension for approximately nine months.  The court held that employees may not be kept indefinitely on suspension, even with full pay, pending disciplinary action.

To mitigate risk, employers are encouraged to ensure that any suspension which is given, aligns with the procedural and substantive requirements as set out in both legislation and case law. Failure to adhere to these requirements or principles could incur a risk of referral as well as a compensation order by the Commission for Conciliation, Arbitration and Mediation (CCMA) or by the Labour Court.

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The chargesheet is the first formal step before a disciplinary hearing after the investigation has been concluded. Drafted by the employer or their HR official, this document, also known as a notice of disciplinary hearing, informs the employee of the pending hearing and its related details. It must balance the employer’s need to address workplace misconduct with the employee’s right to a fair and transparent process. Under the Labour Relations Act, Act 66 of 1995 (LRA) and related case law, employers must ensure that chargesheets are clear, fair and based on solid evidence.

List the correct charges

 The chargesheet should accurately define what the employee is accused of. Instead of using vague terms like “bad behaviour” or “insubordination”, detail exactly what occurred. For example, if an employee did not follow a direct instruction, the chargesheet should detail when it happened, what the instruction was and how the employee did not comply. This helps ensure the employee understands the allegations and can adequately respond.

It’s also important to consider the seriousness of the misconduct and the employer’s disciplinary code. Not every misstep leads to a hearing. For instance, gross misconduct – theft, fraud or violence – may warrant dismissal for a first offence, while minor or isolated incidents might only call for a written warning unless repeated.

Categories and key considerations

When deciding on the charges and how to group them, employers should consider several important factors:

• Employer’s policy: The charges should line up with the employer’s established disciplinary code or rules. If similar cases in the past were handled in a specific way, following that pattern helps keep things fair and consistent, as consistency is important to help avoid claims of favouritism or discrimination.

• Clarity and specificity: The language used in the chargesheet should be simple and clear. Avoid complicated legal jargon that might confuse the employee. Each charge should focus on a single event or failure so that it’s easier for everyone to understand what is being discussed.

• Factual evidence: Every charge must be backed up by clear, objective evidence. This might include for example documents, statements, emails, photos and witness testimony. Having solid proof helps ensure that the charges are based on real events rather than assumptions or hearsay.

• Severity and impact: Consider how the misconduct affected the employer and workplace. Did it disrupt the work environment? Did it harm other employees or the employer’s reputation? Minor mistakes might only warrant a warning, but more serious misconduct that affects the entire team or business could require harsher measures.

A practical example

Consider the following incident:  On 30 January 2025 Mr X publicly yelled, swore and insulted his manager, Manager Y, in front of other staff.

A chargesheet for this incident might read:  “Gross insolence – On 30 January 2025 you were involved in an incident where you yelled at and insulted Manager Y in front of other employees by shouting the following graphic words: “(graphic words)”. Your actions were extremely inappropriate and disrespectful and undermined his/her managerial authority among staff and personally offended Manager Y, constituting a serious breach of our disciplinary code.”

Procedural fairness

A crucial aspect of the chargesheet is ensuring procedural fairness. The employee must be given a clear explanation of the allegations and sufficient time to prepare a response and ultimately give their version of events at the disciplinary hearing. If this process is not followed, it can lead to disputes or legal challenges at the Commission for Conciliation, Mediation and Arbitration (CCMA).

Drafting a chargesheet involves careful consideration of the facts, the seriousness of the misconduct and adherence to both legal standards and the employer’s policy. By listing the correct charges and ensuring that the document is clear and fair, employers can protect themselves legally while also promoting a transparent and fair working environment.

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Incapacity refers to when an employee is incompetent and inherently unable to meet fixed performance standards whether due to ill health or poor work performance.  When the employee cannot perform according to the employer’s required standard due to ill health, the employer should consider the nature of the employee’s job, period of absence, seriousness of the employee’s illness or injury, possibility of accommodating the employee’s disability and possibility of securing alternative employment within the business.

Employees who are unable to perform at the required standard have a huge impact on a business’s normal operations, as most employers don’t have the luxury of spare capacity concerning their workforce to compensate for this deficit.  Employers have the right to establish a fixed standard in the workplace in terms of quality and quantity and to give reasonable and lawful instructions.

It is vital that employers always follow the correct procedures as required by labour legislation:

The investigation process

When an employee is absent on a regular basis, the employer should keep a record of the dates and reasons for the absence on file. If it is continuously for the same reason, it may be that there is an underlying medical reason that should be investigated if it affects the operational requirements of the business.

If the employee brings to the employer’s attention that he/she has a medical condition, or the employer is of the opinion that the employee has a medical condition that affects the employee’s ability to do their job, a consultation process should be held with the employee.

The consultation process

Consult with the employee to determine what the medical condition is and how it is affecting the employee’s work. Discuss the way forward and determine whether it is necessary to send the employee for a medical examination. Ensure that all consultations held with the employee are kept on record and held in the presence of a witness.

The medical examination

The employer should request the employee to obtain a medical report. It is highly recommended that the employer provide the medical practitioner who will be doing the examination, with the employee’s required duties on a day-to-day basis.  The medical report should highlight the following:

• the cause of the incapacity;
• whether the medical condition is going to improve or worsen; and
• what is the expected period for the medical condition to improve.

If the employer requests the medical report, the employer may be liable for the costs thereof.  It is important to set a date by when the employee should provide the medical report.

The employee is entitled to obtain a second opinion. Likewise, if the employee obtained the medical report on their own account, the employer may obtain a second opinion. Furthermore, if an employee requests to proceed with further medical testing, allow them the opportunity to do so.

The assessment

On receipt of the medical report, the employer will be in a position to determine the way forward. The employee’s health and employer’s operational requirements need to be considered. If the employee recovers, it is not necessary to proceed with an incapacity hearing. The employer can however, continue to monitor the individual.

The incapacity hearing

At the incapacity hearing, it will be necessary to determine whether the incapacity is temporary or permanent. Discuss the following questions thoroughly at the hearing:

• Are the circumstances permanent or what is the expected duration of the incapacity?
• Is it clear how long the employee will be absent or unable to perform their duties?
• Is there a period of light duty prescribed by the medical practitioner?
• Does the employer have light duties available for the employee?
• Can the employer make use of a temporary worker until the employee is able to continue working?

If the incapacity is temporary, the employer should determine whether it is possible to accommodate the employee and further, whether the employer can reasonably adapt the work environment to accommodate the employee. Dismissal should only be reserved for, and reverted to as a last resort once all options have been explored. If the incapacity is permanent, which is confirmed by a medical practitioner, the employer may have no other option but to proceed with a dismissal.

If an employee is dismissed for incapacity after following a fair process, the employer should pay out any accumulated leave, salary up to the last working day (possibly sick leave if medical certificates were produced) and the notice period as agreed upon in the employment contract.

It is important that employers deal with issues in the workplace as quickly and effectively as possible, while taking care to act objectively and consistently.  By being proactive, the employer can greatly contribute towards the business’s sustainability and profitability and ensure a working environment with reduced conflict, friction and misunderstanding, which in turn creates a structured environment receptive to growth.

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Retrenchment is the no-fault termination of an employee’s services and is governed by Section 189 of the Labour Relations Act, Act 66 of 1995 as amended (LRA).  It becomes necessary when there are operational requirements to reduce the workforce.  Operational requirements are defined as requirements based on economic, technological, structural or similar needs of the employer.

The retrenchment process

The retrenchment process is clearly set out in Section 189 and 189A of the LRA and must be followed to ensure that such process is both substantively and procedurally fair.

It is important for employers to take note that the retrenchment process must be instituted as soon as it is contemplated. This process can take a considerable amount of time as it depends on various factors such as the number of employees involved and the scale of the intended retrenchment. Employers are therefore warned not to leave it to the last minute to commence with the process.

All reasonable alternatives

Employers are encouraged to commence with the process well in advance to establish if there are any actions that can be taken to avoid retrenching any employees.  The process entails that all reasonable alternatives must be exhausted in order to try and prevent any retrenchments, and the courts have stated that retrenching any employee must be the last resort.

Examples of reasonable alternatives can include short time, reduction in salaries, transferring employees to other departments, reducing overtime, bumping and voluntary separations just to mention a few.  It is important for employers to discuss the alternatives with employees in order to obtain their consent before it can be implemented.

Follow the procedure

The below procedure must be followed when the employer contemplates the possibility of retrenchment (for the purpose of this article we’ll only look at Section 189 and not Section 189A-large scale retrenchments).

1.  Issue a notice of possible retrenchment consultation in terms of Section 189 of the LRA

This notice must contain the date, place and time of the meeting and other specific details, which include:

• Reason for possible retrenchments
• Alternatives that have been considered by the employer
• Number of employees and job categories that will most likely be affected
• Proposed method of selecting employees to retrench
• When the retrenchment will most likely take effect
• Proposed severance pay
• Assistance that can be offered by the employer
• Possibility of future employment
• Number of employees employed
• Number of employees dismissed for operational requirements in the past 12 months

This notice must be issued to the following persons:

• All employees that are most likely to be affected by the retrenchment
• Any person whom the employer must consult with in terms of a collective agreement, if none the notice must be issued to the workplace forum
• The trade union representative if the employees are represented by a trade union

2.  Proper consultation

Proper consultation must be held with employees that will most likely be affected by the retrenchment, or with their trade union representative.  During the consultation, all aspects as contained in the notice must be discussed in full.  The employees, or representative, must be granted the opportunity to provide their feedback on all aspects, as well as alternatives that can be considered in order to prevent retrenchment.  This could entail that further consultations must be scheduled to continue discussing possible alternatives or any other aspect that must be clarified.

The retrenchment process is a consensus seeking process during which the parties must try and reach an agreement on how the retrenchments (and its effects) can be avoided and mitigated as far as possible.

If there are no reasonable alternatives that can be implemented, and retrenchments cannot be avoided, notice of retrenchment must be issued to the affected employees.

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Parental, adoption and commissioning parental leave came into effect on 1 January 2020 under the Labour Laws Amendment Act, Act 10 of 2018.  Many employers in the agricultural industry however get confused about leave given the pending Constitutional Court case judgement on maternity and paternity leave which may likely introduce changes to these forms of leave in the future.

Parental leave

An employee who is a parent of a child is entitled to at least 10 consecutive days of unpaid parental leave. This leave must commence on the day the employee’s child is born, or in the case of adoption on the date an adoption order is granted or when a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order.

Note that currently both male and female employees may qualify for parental leave depending on the circumstances.  If the employee gave birth to the child however, she would not qualify for parental leave but would be entitled to four months’ unpaid maternity leave.

Adoption leave

An employee who is an adoptive parent of a child under the age of two years old is entitled to at least 10 consecutive weeks of adoption leave. Adoption leave may commence on the date an adoption order is granted or the date a competent court places the child in the care of a prospective adoptive parent pending the finalisation of an adoption order, whichever occurs first.

If an adoption order is granted to two adoptive parents, one parent may apply for adoption leave while the other may apply for parental leave. The choice of leave must be decided by the two adoptive parents. Similarly, if a competent court places a child in the care of two prospective adoptive parents pending the finalisation of an adoption order, one prospective parent may apply for adoption leave, and the other may apply for parental leave, with the decision on leave being made at their discretion.

Commissioning parental leave

An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to at least 10 consecutive weeks of commissioning parental leave which may commence on the date the child is born as a result of the surrogate motherhood agreement.

If a surrogate motherhood agreement involves two commissioning parents, one parent may apply for commissioning parental leave, while the other may apply for parental leave. The decision regarding leave allocation must be made at the discretion of the two commissioning parents.

Should employees notify the employer

Yes, employees are required to notify their employer in writing of the date on which their leave will commence and when they will return to work. This notice must be provided at least one month in advance of the expected birthdate of the child, or the date the adoption order is expected to be granted, the placement of the child with a prospective adoptive parent, or the birth of the child under a surrogacy agreement. If notice cannot be provided within the required period, then it must be given as soon as practically and reasonably possible.

Are the abovementioned leave types paid or unpaid?

Currently in terms of labour legislation any parental, adoption or commissioning parental leave taken would be unpaid. The employer is not obliged to remunerate the employee for these leave days, and the employee can submit a claim to the Unemployment Insurance Fund (UIF).

Employers should note that these provisions might change again in the near future pending the decision of a court case that was recently heard in South Africa’s apex court, the Constitutional Court. These leave types as introduced by the Labour Laws Amendment Act are however still currently in force and employers should take note of the leave provisions and requirements to ensure compliance and to support their workforce effectively.

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To uphold the constitutional rights of trade unions and employers’ organisations to engage in collective bargaining, legislation has been enacted to establish the framework within which this process occurs.

The Labour Relations Act 66 of 1995 (LRA)

The LRA lays the groundwork for collective bargaining by establishing the framework for bargaining councils. According to Section 27 of the Act, registered trade unions and registered employers’ organisations may form a bargaining council for a specific sector and area. Additionally, the Act allows for the state to be a party to a bargaining council.

The primary objective of trade unions and employers’ organisations in forming a bargaining council is to regulate industrial relations matters between employers and employees within their respective sectors and areas.

Purpose of bargaining councils

Case law has affirmed that the primary functions of bargaining councils are to conclude and enforce collective agreements concerning terms and conditions of employment or matters of mutual interest, as well as to prevent and resolve labour disputes within the workplace.

Collective agreements

The outcome of collective bargaining between employers’ organisations and trade unions is the negotiation and conclusion of collective agreements. Collective agreements can be defined as agreements between trade unions and employers’ organisations that regulate matters of mutual interest and conditions of employment.

A collective agreement concluded in a bargaining council binds the parties to the bargaining council who are also parties to the collective agreement. A bargaining council may request, in writing, that the Minister of Employment and Labour extend the collective agreement to non-parties within its registered scope, as identified in the request and subject to certain requirements set out in the Act. Once the Minister extends the agreement to non-parties, any employer not originally party to the agreement will be obligated to comply with its provisions and register with the relevant bargaining council.

Collective agreements are concluded for a specific period, with the validity period clearly stipulated in the agreement. Once this period has expired, the agreement will no longer be binding on the parties unless it has been extended for an additional period or a new collective agreement has been concluded.

Dispute resolution

Another key function and power of a bargaining council is to perform dispute resolution functions, typically provided for by the collective agreement and within their jurisdiction, similar to the Commission for Conciliation, Mediation, and Arbitration (CCMA). Common types of disputes presided over by a bargaining council include unfair labour practice and unfair dismissal disputes.

Monitoring compliance

Bargaining councils also monitor compliance with labour legislation in general, and specifically with the provisions of any collective agreements in force within their respective industry and area.

According to the LRA, the Minister of Employment and Labour, at the request of a bargaining council, may appoint designated agents to promote, monitor, and enforce compliance with any collective agreement. These designated agents are empowered to ensure compliance by publicising the contents of agreements, conducting inspections, investigating complaints, and performing other functions as assigned by the bargaining council.

Bargaining councils play a crucial role in establishing terms and conditions of employment or addressing matters of mutual interest within a specific industry. They also work to prevent and resolve labour disputes within the workplace.

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