Law in the Workplace Frequently Asked Questions

Jan 22, 2022

What are the consequences of the referring party's failure to attend conciliation?

Mr X. (the employee) referred an unfair dismissal dispute to the CCMA. The dispute is set down for conciliation. At the proceedings, Mr. X is not present, however, the employer, Mr. Y, is present. Can the CCMA dismiss the matter?

In Premier Gauteng & another v Ramabulana N.O & others (2008) ILJ 1099 (LAC) the court held that “the Labour Relations Act 66 of 1995 (“LRA”) does not confer on the CCMA or bargaining council power to dismiss an employee’s referral of a dismissal dispute simply because he failed to attend the conciliation meeting”.

Taking into consideration the above and the facts, the conciliation process will fail because of Mr. X’s absence and the commissioner of the CCMA will issue a certificate of outcome, stating that the matter “remains unresolved”. Owing to the legal principles in the Ramabulana’s case, the CCMA will not be able dismiss Mr. X’s matter solely due to his failure to attend the conciliation.

Had the matter been set down for a con-arb process (without an objection), the conciliation would fail and the CCMA would issue the certificate of non-resolution. The matter would then immediately proceed to arbitration. At the arbitration stage, the CCMA could make a ruling in terms of section 138(5)(a) of the LRA, read with rule 30(1) of the CCMA rules, to dismiss the matter. Take note that the dismissal of the matter takes place at arbitration and not at conciliation.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Can an employer refuse an employee's request for unpaid leave in order to be trained as a sangoma?

Joyce asked her employer for unpaid leave in order to be trained as a sangoma. When she was making the aforementioned request, she advised her employer that she had received a ‘calling’ from her ancestors. She had the reasonable belief that if she failed and/or neglected to comply with the ‘calling’, an awful event (e.g. death) would befall her. Joyce supported her request with a note from her traditional healer confirming that she had to be trained as a sangoma. The employer refused the leave request and offered her one week instead. Despite the employer’s refusal, Joyce failed to report for duty thereafter and she was dismissed for absenteeism. Does this constitute a fair dismissal?

In Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and others (2014) 3 BLLR 207 (SCA) the Court had to establish whether an employee’s reliance on a ‘calling’ from ancestors is a justifiable reason for disobeying an employer’s instruction for the employee to report for duty.

The Supreme Court of Appeal (“SCA”) held that “…where an employee absents herself from work without permission, and in the face of her employer’s lawful and reasonable instruction, a Court is entitled to grant relief to the employee if the failure to obey the order was justified or reasonable.”

On the given facts, Joyce had a fearful apprehension of suffering misfortune if she failed and/or neglected to respond to the call of her ancestors to attend the course, hence her refusal to report for duty. Furthermore, there was no operational reason on the employer’s side justifying the refusal of unpaid leave. The employer needed to weigh up those considerations in order to make a rational decision.

“African traditional beliefs were part of many South Africans’ cultures. The right to hold such beliefs was constitutionally protected. As the employee had genuinely believed that she had no choice but to attend the training, her dismissal for misconduct had been unfair.”

It follows that Joyce’s dismissal for misconduct was unfair.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Can contracts of employment be subject to an "automatic termination" clause?

Clean-it-All (PTY) Ltd (a temporary employment service) provides cleaning services to a client. Three of the TES’s employees were placed at the client’s premises. One of the terms of the employees’ contracts was that their employment would terminate automatically in the event that the contract between the TES and its client terminated. When the contract with the client was terminated, the TES in turn gave notice to its employees. Can contracts of employment be subject to an “automatic termination” clause? Let us assume that the employees were all in the first 3 months of their placement at the client.

In SATAWU obo Dube v Fidelity Supercare Cleaning Services Group (Pty) Ltd (2015) 36 ILJ 1923 (LC) the Court held that ‘automatic termination’ clauses are impermissible. They limit an employee’s right to fair labour practice. Any provision of a contract that directly or indirectly limits the right to fair labour practice is invalid.

Parties cannot contract out of protection against unfair dismissal by means of an “automatic termination” clause, as the LRA is promulgated in the public interest and not just to cater for the interests of the individuals concerned.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Retrenchment of employees on fixed-term contracts

Mark is employed on a two-year fixed-term contract by Build-It-All Construction (Pty) Ltd. During the sixth month of his fixed-term contract, the company underwent restructuring and subsequently retrenched Mark because his position had become redundant. In his view, he is owed the balance of the term of the contract in addition to a potential unfair dismissal claim.

In Buthelezi v Municipal Demarcation Board (2005) 2 BLLR 115 (LAC) the Court had to establish whether or not an employer can terminate a fixed-term contract early (i.e. prior to its expiry date).

The Labour Appeal Court (“LAC”) held that a fixed-term contract cannot be terminated early, unless the terms and conditions thereof allow for such termination. Therefore, an employer cannot terminate a fixed-term contract, unless the contract itself caters for early termination of the contract and in the absence of a material breach which would warrant summary termination.

Furthermore, the employer will have to comply with s189 of the LRA to be successful in a unfair dismissal claim.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Date of referral to the CCMA

Mr X. (the employee) was dismissed by Mr. Y (the employer) on 12 December 2016. In terms of the Labour Relations Act 66 of 1995 (as amended)(“LRA”), a dispute about fairness of a dismissal must be referred to the CCMA or council within 30 days of the date of dismissal. Taking into consideration the date of dismissal, what is the latest date on which the dispute could have been referred to the CCMA and why?

In terms of rule 3(1)(a) & (b) of the Rules for the Conduct of Proceedings before the CCMA (“CCMA rules”), “day” means a calendar day, and the first day is excluded and the last day is included. In terms of rule 3(2) of the CCMA rules, “the last day of any period must be excluded if it falls on Saturday, Sunday, public holiday or on a day during the period between 16 December to 7 January”.

Taking into consideration the above, the latest date on which the dispute could have been referred to the CCMA is 3 February 2017, despite the fact that the alleged dismissal took place on 12 December 2016.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

Legal representation during a disciplinary hearing


Siya is employed by Sell-Well (Pty) Ltd. On 9 September 2017, a fellow employee’s cellular phone disappeared at the workplace. Subsequent thereto, the employer conducted a thorough investigation and Siya was suspected of theft. Consequently, Siya was charged with theft and the disciplinary hearing was scheduled for 20 September 2017. On the date of the hearing, Siya arrived with an external legal representative and requested of the chairperson that he be permitted to be legally represented, despite the company’s disciplinary policy providing the following:

“In a disciplinary hearing, an employee can be represented by a fellow employee or a representative of a recognised trade union…”

Can Siya’s employer or the chairperson of the hearing refuse Siya’s request for external legal representation solely due to the aforementioned clause?


Due to clauses in company policy of the type in the question above, employers disallow external legal representation at disciplinary hearings.

In MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani (2004) ILJ 2311 (SCA) the employee was refused the right to an external legal representative. The Supreme Court of Appeal (“SCA”) confirmed that in certain circumstances, it may indeed be unfair to deny legal representation in a disciplinary hearing.

In certain situations, the absence of legal representation may put an employee at such a disadvantage, that he or she would not be able to present his or her case in a proper manner unless legal representation is allowed. There is no right to legal representation, as confirmed by the SCA in the aforementioned case. The chairperson always retains a discretion to allow or deny legal representation, even if the employer’s disciplinary procedure states otherwise. The employer’s rules do not trump the employee’s right to a fair hearing.

It follows that the employer cannot merely argue that its policy is not to allow legal representation and that Siya’s request should not be considered on that basis alone. All such requests must be considered by the chairperson and he or she must exercise a discretion as to whether or not to allow it.

The following factors, among others, should be considered:

the nature of the charges (e.g. if they are of a criminal nature);
the factual or legal complexity of the case (e.g. if the case raises questions of legal interpretation or involves complex forensic reports);
potential seriousness of the consequences of the outcome for the employee (e.g. if it may lead to the employee being excluded from his or her profession);
the prejudice that the employer might suffer if it is allowed (e.g. lengthy delays, problems related to consistent application of the rule regarding representation in the future or having to employ its own lawyer in response to the employee being permitted legal representation); and
whether the employee, if found guilty, may lose accreditation from a professional body.

Legal representation in a disciplinary hearing remains the exception and not the rule. What the chairperson must do is consider the request in the light of the factors mentioned and then make a decision.

The advice contained herein is of a generic nature. We recommend that you seek advice when applying it to your specific situation.

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.