Podcasts
In this discussion in our “What If” series, we unpack a critical Labour Appeal Court decision in the matter of Bakhresa SA (Pty) Ltd v Roshelle Jaipal & Others (DA09/2025) ZALAC (24 March 2026). We dive into the case of an employee dismissed during an unprotected strike for sending a WhatsApp message stating management “don’t have the balls” and for questioning the authenticity of a court interdict in an email.
– Ross Simon (Associate, BCom (Law) LLB, Post Graduate Diploma in Labour Law Practice),
WP Moolman (Partner: Equity, LLB) , Ulrich Stander (Managing Partner & Director, BA LLB LLM IRDP)
Drawing on the recent Case, dismissal for a provocative WhatsApp status is not automatically fair. The key test is proportionality — employers must show real or reasonably foreseeable harm, not merely offence or embarrassment. Context matters: existing tensions, prior instructions, and the employee’s response afterwards all influence the appropriate sanction. Even where conduct is deliberate and provocative, a final written warning may still be the fairer outcome.
– Ross Simon (Associate, BCom (Law) LLB, Post Graduate Diploma in Labour Law Practice),
WP Moolman (Partner: Equity, LLB) , Ulrich Stander (Managing Partner & Director, BA LLB LLM IRDP)
Drawing on the recent Labour Court judgment in Mqulwana v CCMA & Others, the answer is while a medical certificate may prove that an employee was genuinely ill, it does not excuse a failure to notify the employer of the absence timeously. South African labour law treats these as two separate obligations — the certificate addresses incapacity, but failing to follow reporting procedures is a distinct form of misconduct that can justify disciplinary action, and even dismissal, regardless of whether the illness was legitimate.
– Ross Simon (Associate, BCom (Law) LLB, Post Graduate Diploma in Labour Law Practice),
WP Moolman (Partner: Equity, LLB) , Ulrich Stander (Managing Partner & Director, BA LLB LLM IRDP)
Based on the Labour Court judgment in NUMSA v Denel, the answer is that an employee’s objection will only succeed if their employment contract or incorporated disciplinary code explicitly prohibits the use of external parties. If the code is simply silent on the matter, the employer retains the discretion to appoint an external chairperson or initiator without breaching the contract. However, where the employer appoints an external legal practitioner as initiator, fairness considerations strongly suggest the employee should be given the same opportunity to be represented by a legal practitioner — consistent with the approach applied in CCMA misconduct and incapacity disputes
– Ross Simon (Associate, BCom (Law) LLB, Post Graduate Diploma in Labour Law Practice),
WP Moolman (Partner: Equity, LLB) , Ulrich Stander (Managing Partner & Director, BA LLB LLM IRDP)
If an employer ignores formal medical guidance on disability accommodation, they risk breaching the Employment Equity Act, facing urgent court intervention, interdicts against performance management or further medical testing, and potential liability for discrimination, unfair labour practices, and harm to the employee’s dignity and health.
– Ross Simon (Associate, BCom (Law) LLB, Post Graduate Diploma in Labour Law Practice), WP Moolman (Senior Associate, LLB) and Ulrich Stander (Director, BA LLB LLM IRDP) from Maserumule Corporate Employment Law
A dismissal for toilet paper possession is substantively fair only if the employer proves, on a balance of probabilities, that the item belonged to the employer and that the employee intended to remove it dishonestly.
– Ross Simon (Associate, BCom (Law) LLB, Post Graduate Diploma in Labour Law Practice), WP Moolman (Senior Associate, LLB) and Ulrich Stander (Director, BA LLB LLM IRDP) from Maserumule Corporate Employment Law