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⚖️ LABOUR LAW INSIGHTOne of the common questions employers face is whether an employee is entitled to bring someone alon...
12/10/2026

⚖️ LABOUR LAW INSIGHT

One of the common questions employers face is whether an employee is entitled to bring someone along to a disciplinary hearing.

The short answer is YES — but the type of representation matters!

1. Representation by a fellow employee or trade union representative

In terms of the applicable Code of Good Practice: Dismissal, an employee should be allowed the assistance of a fellow employee or a trade union representative when responding to allegations of misconduct.

2. Can an employee bring legal or external representation?

Not automatically. An employee does not generally have an automatic right to legal representation at an internal disciplinary hearing.

However, the employer’s disciplinary code, workplace policies, applicable collective agreements and the circumstances of the case must be considered. A request for external representation should be assessed fairly and in accordance with the applicable rules.

3. Can an employer simply refuse representation?

Employers should be cautious about doing so. A disciplinary process must be procedurally fair, and an unreasonable refusal to allow representation where it is required may expose the employer to a procedural unfairness dispute.

4. What should employers do?

▪️ Ensure the employee is informed of their right to representation.

▪️ Check the company’s disciplinary code and applicable agreements.

▪️ Allow reasonable time for the employee to prepare and arrange representation.

▪️ Deal with requests for external representation fairly and consistently.

▪️Ensure the disciplinary hearing is conducted impartially and that the employee has a genuine opportunity to respond to the allegations.

⚖️Remember: A disciplinary hearing is not a criminal trial, but it must still be fair. Getting the procedure right is just as important as having a valid reason for disciplinary action.

Need assistance with disciplinary hearings, disciplinary codes or labour-law compliance?

LabourCentric provides practical, employer-focused labour-law support to help businesses manage workplace discipline fairly and effectively.

Happy Heritage Day 🇿🇦💚
24/09/2026

Happy Heritage Day 🇿🇦💚

⚖️ THE DANGER OF INCONSISTENT DISCIPLINE IN THE WORKPLACE“But we dismissed another employee for the same thing last year...
11/09/2026

⚖️ THE DANGER OF INCONSISTENT DISCIPLINE IN THE WORKPLACE

“But we dismissed another employee for the same thing last year…”

This is one of the first questions an employer may face when an employee challenges a disciplinary sanction.

The principle of disciplinary consistency, often referred to as the parity principle, requires employers to treat employees who have committed comparable misconduct consistently.

In Gcwensha v CCMA & Others, the Labour Appeal Court described disciplinary consistency as a hallmark of progressive labour relations, emphasising that employees should be measured against the same standards.

Similarly, in NUM & Another v Amcoal Colliery t/a Arnot Colliery, the Labour Appeal Court confirmed that the parity principle is intended to prevent unjustified selective punishment and to ensure that like cases are treated alike.

However, this does NOT mean that every employee who commits the same offence must automatically receive the exact same sanction.

In SACCAWU & Others v Irvin & Johnson Ltd, the Labour Appeal Court recognised that the best an employer can generally strive for is reasonable consistency, because disciplinary decisions require an element of discretion.

The courts have also recognised that differences in circumstances can justify different sanctions. Factors such as:

▪️ Length of service
▪️ Previous disciplinary record
▪️ Seniority and responsibilities
▪️ Seriousness and circumstances of the misconduct
▪️ Level of remorse
▪️ Whether the employees genuinely committed comparable misconduct
▪️ The impact of the misconduct on the employment relationship

may all be relevant.

🚨 Where employers get into trouble?

An employer dismisses Employee A for misconduct.

Six months later, Employee B commits substantially similar misconduct — but receives a warning.

If the employer cannot provide a legitimate reason for the difference in treatment, Employee B may raise inconsistent application of discipline at the CCMA or Bargaining Council.

The reverse can also be problematic: an employer cannot simply rely on an earlier lenient sanction as justification for giving another employee the same lenient treatment if the circumstances are materially different.

📌 The lesson for employers

Before imposing a disciplinary sanction, ask:

“Have we dealt with similar misconduct consistently in the past?”

And if the answer is NO:

“Can we objectively justify why this case is different?”

Employers should maintain proper disciplinary records and ensure that sanctions are applied fairly, consistently and objectively, while still considering the individual circumstances of each employee.

⚖️ Consistency does not mean identical treatment. It means justifiable and reasonable treatment of comparable cases.

Contact LabourCentric for professional employer-focused labour law assistance.

🤰⚖️CAN AN EMPLOYER CONTACT AN EMPLOYEE WHILE ON MATERNITY LEAVE?And what if your employer is still paying you and requir...
28/08/2026

🤰⚖️CAN AN EMPLOYER CONTACT AN EMPLOYEE WHILE ON MATERNITY LEAVE?

And what if your employer is still paying you and requires you to work from home?

The answer is: it depends & needs to be handled on a case by case basis ⤵️

Maternity leave is a statutory entitlement. Section 25 of the Basic Conditions of Employment Act (BCEA) provides for maternity leave and, importantly, states that a woman who has given birth may not work for six weeks after the birth, unless a medical practitioner or midwife certifies that she is fit to do so.

Therefore, an employer cannot simply say:

"We are paying you, so you must work from home for a few hours.”

📞 CAN YOUR EMPLOYER CONTACT YOU?

Yes, reasonable contact during maternity leave is not necessarily prohibited.

An employer may need to contact an employee regarding:
▪️ payroll or administrative matters;
▪️ her expected return-to-work date;
▪️ important workplace information; or
▪️ arrangements for her return.

But there is a clear difference between:

“We need to confirm your return date.”
vs
“Please work from home for four hours every day.”

The second is work, not merely contact.

🏠 WHAT IF THE EMPLOYEE IS BEING PAID?

Being paid during maternity leave does not automatically give an employer the right to require the employee to work.

After the initial six-week period, the circumstances may be different, particularly where an employee voluntarily agrees to a properly structured arrangement. However, employers should be cautious about treating paid maternity leave as an entitlement to the employee's services.

The Constitutional Court's decision in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20 is an important recent authority on South Africa's maternity and parental leave framework.

⚖️ THE LABOURCENTRIC TAKEAWAY:

CONTACT ≠ WORK
PAYMENT ≠ AUTOMATIC ENTITLEMENT TO LABOUR

If an employee is on maternity leave, employers should think carefully before requiring her to work remotely — even if it is only a few hours a week and even if she continues receiving her salary.

📩 Need advice on maternity leave or another employment-law matter? Contact LabourCentric.

SUSPENSION WITH PAY vs WITHOUT PAY — KNOW THE DIFFERENCESuspension is an important tool available to employers, but how ...
18/08/2026

SUSPENSION WITH PAY vs WITHOUT PAY — KNOW THE DIFFERENCE

Suspension is an important tool available to employers, but how and why an employee is suspended matters.

◾️ SUSPENSION WITH PAY
A precautionary suspension is generally used to protect the integrity of an investigation or disciplinary process. It is not intended to be a punishment.

In Long v South African Breweries (Pty) Ltd and Others [2019] ZACC 7, the Constitutional Court confirmed that where a suspension is precautionary and not punitive, an employer is not necessarily required to give the employee an opportunity to make representations before the suspension. The employer must, however, have a fair reason for the suspension and consider potential prejudice to the employee. Payment of the employee's salary generally mitigates such prejudice.

◾️ SUSPENSION WITHOUT PAY

An employer should not simply suspend an employee without pay as a precautionary measure. A suspension without pay may constitute a disciplinary sanction and must be approached in accordance with the employer's disciplinary procedures, applicable policies, contract and collective agreements.

The courts have recognised that unpaid suspension can, in appropriate circumstances, be imposed as a disciplinary penalty, provided there is a proper legal and contractual basis for doing so.

⚠️ Employers should therefore ask:

▪️ Is the suspension precautionary or punitive?
▪️ Is there a genuine and fair reason for the suspension?
▪️ Does the employer's policy or contract permit the proposed suspension?
▪️ Is the employee being paid?
▪️ Is the suspension being kept for only as long as reasonably necessary?
▪️ Has the employer followed its own procedures and any applicable collective agreement?

📌 Note:

A suspension is not automatically unfair simply because an employee is suspended. However, employers must carefully distinguish between a precautionary suspension and a disciplinary suspension, and ensure that the decision is lawful, reasonable and procedurally appropriate.

At LabourCentric, we assist employers with disciplinary processes, precautionary suspensions, workplace investigations and labour-law compliance.

🚨 CAN AN EMPLOYEE REFUSE TO WORK OVERTIME?Answer: Sometimes BUT not always.Under section 10 of the Basic Conditions of E...
11/08/2026

🚨 CAN AN EMPLOYEE REFUSE TO WORK OVERTIME?

Answer: Sometimes BUT not always.

Under section 10 of the Basic Conditions of Employment Act (BCEA), an employer may not require or permit an employee to work overtime unless there is an agreement providing for overtime. The BCEA also generally limits overtime to 10 hours per week and provides specific rules regarding payment for overtime.

But what happens when an employee simply refuses an instruction to work overtime?

⚖️ In AMCU obo Mkhonto and Others v CCMA and Others [2023] ZALCJHB 23, the employees were dismissed after refusing an instruction to work overtime.

The Labour Court found that, in the absence of a valid agreement to work overtime in terms of section 10(1)(a) of the BCEA, the instruction to work overtime was unlawful and unenforceable. The employees therefore could not simply be found guilty of insubordination for refusing an unlawful instruction.

However, this does not mean an employee can automatically refuse every request for overtime.

💡Employers needs to consider:

▪️Does the employment contract contain a valid overtime agreement?
▪️Has the employee agreed to work overtime?
▪️Is the overtime within the statutory limits?
▪️Is the employee covered by a bargaining council agreement or sectoral determination with different provisions?
▪️Has the overtime agreement remained legally enforceable?
▪️Is the employee's refusal reasonable, or is there a deliberate refusal to comply with a lawful instruction?

Importantly, in AMCU obo Mkhonto, the Court also emphasised that even where an employee's conduct amounts to insubordination, dismissal is not automatically justified. The nature of the refusal, whether it was wilful or malicious, and the appropriate level of discipline must be considered.

📌 The takeaway for employers:

Don't simply issue an instruction and assume that refusal equals insubordination.

First establish whether the employer has a valid contractual or other agreement requiring overtime.

A properly drafted employment contract and a clear overtime policy can prevent significant disputes later.

Labour law is about more than rules — it's about applying the right rule to the right circumstances.

📞 Need assistance with employment contracts, overtime policies or disciplinary matters?

LabourCentric – Labour Law Experts
Protecting your business. Empowering your people.

Strong women. Strong voices. Stronger workplaces 🩷Wishing all the amazing women a very Happy Women’s Day from LabourCent...
09/08/2026

Strong women. Strong voices. Stronger workplaces 🩷

Wishing all the amazing women a very Happy Women’s Day from LabourCentric! 🌷

📱 Social Media Misconduct: Can Your Facebook Post Get You Dismissed?The short answer: YES Many employees believe that wh...
04/08/2026

📱 Social Media Misconduct: Can Your Facebook Post Get You Dismissed?

The short answer: YES

Many employees believe that what they post on social media platforms such as: Facebook, TikTok, Instagram, X, or WhatsApp is their private time.

However, where a social media post damages an employer's reputation, discloses confidential information, amounts to harassment, or destroys the trust relationship, it can justify disciplinary action, including dismissal.

South African courts and the CCMA have repeatedly confirmed that online misconduct is not beyond the reach of the workplace.

⚖️ Key cases:

• Sedick & Another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA) – Employees were fairly dismissed after making derogatory Facebook comments about their employer.

• Fredericks v Jo Barkett Fashions (2011) 32 ILJ 2538 (LC) – The Labour Court confirmed that misconduct committed outside the workplace may justify dismissal where it has a sufficient connection to the employment relationship.

• Edcon Ltd v Cantamessa and Others (2019) 40 ILJ 1269 (LAC) – The Labour Appeal Court upheld the dismissal of an employee whose racist Facebook post caused serious reputational harm to her employer, despite the post being made outside working hours.

💡 Remember: Your right to freedom of expression is not unlimited. Employees have a duty of good faith towards their employer, and social media is not a "safe zone" from disciplinary action.

Employers: Ensure your disciplinary code and social media policy clearly regulate online conduct.

Employees: Before you post, ask yourself whether you would be comfortable explaining it at a disciplinary hearing.

Happy Mandela Day! 🇿🇦"It is in your hands to create a better world for all who live in it." – Nelson Mandela ...
18/07/2026

Happy Mandela Day! 🇿🇦

"It is in your hands to create a better world for all who live in it." – Nelson Mandela

Now more than ever, it’s important to know who is working in your business.LabourCentric assists with ID, Passport & Wor...
16/07/2026

Now more than ever, it’s important to know who is working in your business.

LabourCentric assists with ID, Passport & Work Permit Verifications for both new hires and current employees, helping you stay compliant, reduce risk, and protecting your workplace.

▪️Verify identity
▪️Confirm legal work status
▪️Stay compliant

Don’t wait for an issue to arise — verify today.

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Friday 08:00 - 16:00

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