When a shop steward violates workplace rules, it often puts employers in a difficult position. On the one hand, a shop steward has protected rights under labour legislation and on the other hand, they remain employees who are subject to workplace rules and disciplinary standards.

What is a shop steward

A shop steward is usually an employee elected by fellow employees who are also union members to represent them in the workplace. He/She acts as an important liaison for grievances, negotiations and the enforcement of collective agreements.

When can employees officially lay claim to a shop steward

There must be a majority representation of a union’s members in a workplace. The relevant union may therefore only officially select and “appoint” shop stewards for the workplace when they have a majority representation of members in the workplace. Majority representation is usually when the total number of union members is more than 50% +1 of the workforce.

What is a shop steward’s function

Section 14(4) of the Labour Relations Act 66 of 1995 (LRA) states that a shop steward may perform the following functions:

1. To assist and represent a fellow employee in grievance and disciplinary proceedings at the request of that employee.
2. To monitor the employer’s compliance with workplace-related provisions of the LRA, as well as any law regulating terms and conditions of employment and any collective agreement that is binding on the employer.
3. To report any alleged breach of the workplace related provisions in terms of the LRA, or any law regulating terms and conditions of employment, as well as any collective agreement binding on the employer, to:
   • the employer;
   • the representative union; and
   • any responsible authority or agency.
4. To perform any other function agreed upon between the representative trade union and the employer.

Discipline can still be applied

The title ‘shop steward’ does not exempt the employee from the workplace’s rules and disciplinary code. Employers must however be careful and investigate each incident on its own merits.

The recently updated LRA schedule 8, the Code of Good Practice for Dismissal, provides broad guidelines to employers on the implementation of dismissals and, in particular, the dismissal of a shop steward. Item 11(7) of the Code provides that discipline against an employee who is also an official or shop steward of a union must not be imposed until the employer has first notified and discussed it thoroughly with the union.

It is clear that labour law treats shop stewards differently from normal employees in certain circumstances, precisely because of their statutory role and function. A good example of this is during negotiations where the shop steward is on an equal footing with the other parties to the negotiation. The conduct of the shop steward must fall within the limits of fair negotiation tactics and be related to a shop steward’s role and duties. If the conduct does not meet this test, the employer can institute disciplinary action.

The challenge lies in dealing with these violations correctly and fairly without creating the impression of victimisation or unfair labour practices. In such cases, proper consultation with the relevant trade union is not only good practice, but often a necessary step to limit legal risks and protect labour relations.

Employers must therefore be careful not to provoke a shop steward into behaviour during negotiations that leads to the breach of workplace rules, such as where the representative then uses inappropriate language, etc. Our courts have already found that dismissing shop stewards in such circumstances is considered unfair.

While the shop steward is not acting in his/her capacity as such, he/she is treated like any other employee. Managers have the right to discipline a shop steward, but there must be reasonable grounds for doing so and it must be done in a fair manner. It is important to note that even if the shop steward is not acting in his official capacity, a hearing cannot be scheduled for misconduct before the employer has consulted with the union about it.

Procedure that must be followed

When the shop steward violates a rule and a hearing is required, the employer is obliged to notify the union, after which the employer must arrange a consultation with the union to discuss the alleged offence. These consultations must aim to find ways to resolve the problem without applying discipline.

The purpose of this provision is to enable the parties to find a solution that will reduce the likelihood of industrial unrest that could be caused by the dismissal of a shop steward.

No solution, what now?

Although employers must conduct these consultations in advance and in good faith, this does not mean that the employer must accept the union’s proposals to avoid disciplinary action. If the proposals have been investigated and considered and there is still no solution, the employer may proceed to take the necessary disciplinary action against the shop steward, such as scheduling a disciplinary hearing and imposing a fair sanction if the shop steward is found guilty.

Ignoring the legal procedure is extremely dangerous and can pose great risk to the employer, especially in the case of a shop steward.

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Public holidays can have a significant impact on employers when business operations must continue uninterrupted. Public holidays are regulated by the Public Holidays Act 36 of 1994 (PHA), while remuneration for work performed on a public holiday is regulated by labour legislation, namely the Basic Conditions of Employment Act 75 of 1997 (BCEA), a Sectoral Determination or Bargaining Council’s collective agreement where applicable to the employer’s specific industry.

Can employees be required to work on a public holiday

An employer may not require an employee to work on a public holiday, unless there is an agreement to this effect, preferably in writing – provided for in the employee’s contract of employment or agreed in advance. The BCEA does not automatically oblige an employee to work on a public holiday, and therefore without such an agreement, an employee may lawfully refuse to do so.

2026 public holidays in South Africa

South Africa has 12 official public holidays. In terms of the PHA, if a public holiday falls on a Sunday, the public holiday will be observed the following Monday, which will also be regarded as a public holiday.

The official public holidays for 2026 include (at the time when this article was written):

• 1 January (Thursday) — New Year’s Day
• 21 March (Saturday) — Human Rights Day
• 3 April (Friday) — Good Friday
• 6 April (Monday) — Family Day (Easter Monday)
• 27 April (Monday) — Freedom Day
• 1 May (Friday) — Workers’ Day
• 16 June (Tuesday) — Youth Day
• 9 August (Sunday) — National Women’s Day
• 10 August (Monday) — National Women’s Day (observed)
• 24 September (Thursday) — Heritage Day
• 16 December (Wednesday) — Day of Reconciliation
• 25 December (Friday) — Christmas Day
• 26 December (Saturday) — Day of Goodwill

Note that government is yet to announce the date for the 2026 Local Government Elections. We might therefore see an additional public holiday being declared by the President in terms of the PHA later in the year.

Remuneration for work done on a public holiday

Calculation of remuneration for work done on a public holiday can be confusing. There are two scenarios for employees who earn below the income threshold:

Scenario 1: Public holiday falls on a day the employee would normally work

• If the employee does not work on the public holiday, the employee must be paid the employee’s normal daily wage.
• If the employee works on the public holiday, he/she must be paid double the daily wage, or if it is greater, their normal daily wage plus the amount earned by the employee for the time worked on that day.

Scenario 2: Public holiday falls on a day the employee would not normally work

• If the employee does not work on the public holiday, no payment is due.
• If the employee does in this case work on the public holiday, he/she must be paid their daily wage plus their hourly wage for each hour worked on the public holiday. Keep in mind that an employee who works for less than four hours on any day must be paid for at least four hours’ work on that day, even if they worked for less than four hours.

If an employee earns above the income threshold, an employer should consult one of our legal experts for advice regarding payment for work done on public holidays.

Reasonable notice and exchange of public holidays

Employers must provide employees with reasonable notice if they are required to work on a public holiday. A public holiday may be exchanged for another day, but only when there is a written agreement between the employer and the employee. Where a public holiday is exchanged, the employee is entitled to receive only the normal daily wage for both the original public holiday and the exchanged day.

This article focuses on employment under the BCEA and there might be different laws applicable to your industry, which might be governed by a Sectoral Determination or Bargaining Council’s collective agreement with different provisions regulating public holidays. Employers are encouraged to contact the LWO to seek legal advice when dealing with these issues.

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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) and the Code of Good Practice: Dismissal (the Code).  Retrenchment 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. The process of retrenchment 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 retrenchment 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 retrenchment 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 retrenchments under 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:

• Number of employees and job categories that will most likely be affected
• Reason for possible retrenchments
• Alternatives that have been considered by the employer (including whether those alternatives have been pursued by the employer and if not, the reasons why; also whether any alternatives are offered and what they entail)
• Selection criteria/Proposed method of selecting employees to retrench
• When the proposed retrenchment will most likely take place
• Proposed severance pay
• Assistance that can be offered by the employer to the affected employee(s)
• Possibility of future re-employment and who it will be offered to first, as well as the arrangements for keeping in contact
• 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 process

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. Employers that are regulated by bargaining councils should also ascertain whether there are council/collective agreements that regulate retrenchment processes.

In conclusion it should be noted that dealing with retrenchments contain a lot of pitfalls and employers should contact the LWO to obtain proper advice before beginning with the process.

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When an employee is arrested and held while awaiting trial, employers must balance operational needs with fair labour practices. The key questions are: how to classify the absence (desertion, absence without permission or incapacity), whether pay is due, what steps to take procedurally, and when/if dismissal is appropriate.

“No work, no pay”

Under South African labour law, the “no work, no pay” principle applies. If an employee cannot render services because they are detained, there is generally no obligation to pay. The Basic Conditions of Employment Act, 1997, does not create a leave category for arrest or detention, and the employee is not performing contracted duties. Communicate this position in writing, record the dates of absence, and keep payroll aligned accordingly.

To maintain continuity, employers may appoint a temporary replacement on a fixed term contract. The contract should clearly state the temporary nature of the role and link it to the original employee’s absence, so expectations are managed and the arrangement remains compliant.

Desertion vs incapacity

Throughout, the employee retains the right to fair labour practices and not to be unfairly dismissed. Depending on circumstances, it is more accurate to view the absence as a potential incapacity issue—i.e. the employee is temporarily unable to perform their job due to external constraints. Desertion implies an intent not to return, which is unlikely in cases of detention where the employee is involuntarily absent.

Process: investigate, communicate, document

Before any disciplinary or incapacity action, take reasonable steps to establish facts and intent:

• Investigate the reason and likely duration of absence.
• Attempt contact with the employee directly. Where impossible, reach out to family members or use written correspondence (including via the prison system, where feasible).
• Invite representations: provide the employee with a concise summary of material facts and request a written statement explaining their position and why discipline should not follow.
• Keep records of all attempts, communications, and responses.

Dismissing for desertion while aware of the detention—and without allowing representations—often risks an unfair dismissal finding. Where the employee is released quickly or is on bail, schedule proceedings promptly; the employee would ordinarily be expected to report for duty, unless bail conditions prevent it.

For extended imprisonment, use whatever communication channels are reasonably available (official prison contact, written exchanges) to secure the employee’s input. Maintain a clear paper trail showing that you sought their version and considered it before taking decisions.

Considering dismissal on incapacity

If detention renders the employee incapable of performing duties, termination may be contemplated on incapacity grounds (see Section 188 of the Labour Relations Act, 1995). In line with the new Code of Good Practice: Dismissal (Gazetted 4 September 2025), the employer must:

• Assess the extent and likely duration of the incapacity.
• Investigate alternatives short of dismissal (e.g., temporary redistribution of duties, extended unpaid leave, temporary replacement).
• Weigh role requirements (safety-critical roles, operational impact) and the feasibility of resuming duties after release.
• Follow a fair procedure, affording the employee a chance to make representations on both guilt/grounds and sanction, even if only in writing.

A fair incapacity process demands engagement with the employee and assessment of alternatives to dismissal. Substantive fairness (good reason) and procedural fairness (fair process) must both be present.

Bottom line

Each case turns on its facts. Proceed methodically, communicate transparently and document every step to safeguard both operational continuity and legal compliance.  Employers are strongly advised to consult legal professionals to ensure compliance with current labour laws and to minimise legal risks.

Contact the LWO for any advice or assistance!

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Constructive dismissal is a term that often appears in labour law, but still causes confusion for many employers. Constructive dismissal refers to a situation where an employee resigns on their own, but the resignation is directly linked to the employer’s action or failure to act. The employee feels that he/she had no other choice but to resign due to the work environment being made intolerable or unreasonable.

Where is it found in the law?

In South Africa, constructive dismissal is clearly defined in section 186(1)(e) of the Labour Relations Act 1996. It is described as the termination of employment by the employee, with or without notice, because the employer’s actions (or inaction) have made it intolerable for the employee to continue with the employment.

It is important to remember that the burden of proof lies with the employee. If a dispute is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or Labour court, the employee will therefore have to prove that the employer’s actions were objectively unreasonable and that there was no other reasonable option available to the employee than to resign.

What is constructive dismissal?

The essence of constructive dismissal lies in the relationship between employer and employee. An employer has a duty to maintain a fair, safe and respectful working environment. If the employer fails to do so through intimidation, discrimination, unfair labour practices or failure to respond to complaints, this may give rise to a constructive dismissal claim.

It is important to understand that not every resignation qualifies as constructive dismissal. It is not enough for an employee to simply be dissatisfied. Conflicts over performance management or minor disagreements over trivial matters with colleagues do not automatically qualify as constructive dismissal.

A successful claim for constructive dismissal

To be successful with a claim for constructive dismissal, the employee must be able to prove that:

• the resignation can be directly attributed to the employer’s action and/or failure to act;
• all reasonable steps were taken to report and address the problem internally;
• the employer was made fully aware of the intolerable situation;
• the employer failed to take any steps to remedy the situation; and
• the work situation deteriorated to such an extent and became intolerable that no reasonable alternative other than termination of employment was available to the employee.

Practical examples for employers

• Unfair disciplinary action, such as when an employee is repeatedly punished without just cause or an opportunity to present his/her case.
• Intimidation and bullying by a manager which is never corrected can create a hostile work environment.
• Drastic changes to terms of employment without proper consultation, such as a reduction in salary or change in working hours, which are exacerbated by threats such as that the employee will be dismissed if he/she does not comply with the request.
• Failure to act on harassment in the workplace, such as when an employee reports sexual harassment and nothing is done, can be a strong basis for a constructive dismissal claim.

Tips for employers

The best way to prevent constructive dismissal is to consistently apply the principles of fairness and implement policies that address misconduct and harassment in the workplace. Employers should encourage open communication, take complaints seriously and follow up appropriately. Be transparent about any changes to conditions of employment and obtain the employee’s input and consent before implementing decisions.

It also helps to train managers in human resource practices, disciplinary processes and conflict management. Ultimately, it’s about respect and consistency. When employees feel they are treated fairly and their concerns are taken seriously, the risk of constructive dismissal is significantly reduced.

Although it is the employee’s responsibility to prove constructive dismissal, it is often the employer’s actions or negligence that cause the problem. By creating a fair and respectful work environment, maintaining open communication, and following procedures correctly, employers can protect themselves from disputes and arbitrations.

Contact the LWO for any advice or assistance!

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Moonlighting is common in South Africa and refers to where an employee holds a secondary job or runs a personal business while employed full-time elsewhere. Especially during financial strain, it offers workers extra income, but poses risks like conflicts of interest and reduced productivity for employers aiming to maintain a fair workplace.

Case law

Under common law, employees have a fiduciary duty to act in good faith, protecting and promoting their employer’s interests. South Africa’s Constitution (section 23) ensures fair labour practices, supported by laws like the Labour Relations Act of 1995. The Labour Court recently clarified moonlighting’s legal standing in Dr Sibongile Vilakazi v Commission for Conciliation, Mediation and Arbitration and Others (2023).

In 2017 Dr Vilakazi took a position as a part-time lecturer at Wits Business School while employed at Alexander Forbes. In 2018 Dr Vilakazi, after resigning from Alexander Forbes signed a contract for full-time employment as a lecturer at the university effective 1 July 2018. On 4 July 2018 Dr Vilakazi, whilst remaining in the employment of the university, also took a full-time accounts director role at Kantar South Africa, which interestingly also paid more than the university. Both employment contracts required her to disclose external work and obtain approval from the respective employers to engage in outside work, which she did not do.  In this specific case before the Labour Court, the employee was mandated/required to obtain the Vice-Chancellor’s approval for external work, including moonlighting, as required in terms of the university’s “Declaration of Interest Policy”, which the employee had failed to do.

The university charged Vilakazi with gross misconduct for her undisclosed Kantar job. After a disciplinary hearing, she was dismissed. She contested this at the Commission for Conciliation, Mediation and Arbitration (CCMA), which upheld the dismissal as fair. Thereafter she referred it the matter to the Labour Court for review of the commissioner’s decision. Vilakazi’s Labour Court review was dismissed, with the court stressing employees’ duty to act honestly and avoid conflicts of interest. Her undisclosed Kantar role risked harming the university, violating its policy. Her claim that she could manage both jobs was deemed irrelevant.

The court held that the commissioner’s findings on the misconduct were justified, and that the conclusion of dismissal was a fair sanction in that case and in the circumstances. The court noted that the employee was a highly educated person and should have known better, and that it is common knowledge that moonlighting during the course of permanent employment is not acceptable behaviour.

Moonlighting

Employers can manage moonlighting by:

• Adding contract clauses requiring permission for secondary work and disclosure of conflicts.
• Setting policies that secondary jobs must not:
  – Contradict the employment contract
  – Harm the employer’s business
  – Impair primary job performance
• Investigating moonlighting during sick leave to assess compatibility with the employee’s condition.

Balancing employees’ rights to earn extra income with business protection is key. For example, if an employee diverts clients to their secondary job, this breaches good faith and may in some instances warrant dismissal. Employers should list such acts as serious misconduct in disciplinary codes.

Without clear contractual provisions or policies, employers may struggle to discipline employees for moonlighting unless it directly affects performance or creates conflicts.

Contact the LWO for any advice or assistance!

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