July 2024
INTRODUCTION
Dear Reader
Employment and labour law in South Africa continues to evolve at pace. Constitutional challenges reshape statutory frameworks. Courts refine procedural obligations. Workplace policy must adapt to social and regulatory change.
For employers, HR leaders and in-house counsel, the difficulty lies not in accessing information — but in interpreting it correctly and applying it confidently.
This inaugural volume of Labour Law by the Book, prepared by Deneys, distils recent legal developments and practical guidance into clear, operational insight.
In this edition, we address:
- The pending Constitutional Court challenge to the parental leave regime
- Cannabis use and the limits of zero-tolerance workplace policies
- Procedural fairness and compensation in large-scale retrenchments
- Police accountability during violent strike action
- Practical guidance on sick leave, human rights governance and strike management
Our aim is straightforward: to equip employers with clarity, foresight and defensible decision-making.
PART I
DEVELOPMENTS FROM THE COURTS
1. Parental Leave: A Constitutional Reset on the Horizon
The Current Position
The Constitutional Court is expected to determine a challenge to the parental leave and benefits framework under:
- The Basic Conditions of Employment Act (BCEA)
- The Unemployment Insurance Fund Act
The High Court previously declared aspects of the regime unconstitutional. The matter now awaits final adjudication.
The Legal Challenge
The current framework provides:
- Four months’ maternity leave for biological mothers
- Two weeks’ parental leave for biological fathers
- Unequal allocation in adoption and surrogacy arrangements
- No leave for adoptive parents of children older than two
The challenge argues that this structure:
- Reinforces gender stereotypes
- Discriminates between different categories of parents
- Unjustifiably limits equality, dignity and children’s rights
Likely Direction of Reform
Should the challenge succeed, we may see:
- A shared parental leave model
- Greater flexibility in allocation between parents
- A restructured benefits regime
Employer Implications
Employers should proactively review:
- Paid parental leave policies
- Policy language and eligibility criteria
- Equity and discrimination risk
The direction of travel is towards parity and flexibility. Internal policies must anticipate that shift while remaining commercially sustainable.
2. Cannabis in the Workplace: Zero Tolerance Under Scrutiny
In Enever v Barloworld Equipment (2024), the Labour Appeal Court found that dismissing an employee for testing positive for cannabis was automatically unfair in the circumstances.
Core Findings
- The employee held a desk-based position.
- Cannabis was consumed privately, outside working hours.
- There was no evidence of impairment at work.
- A strict zero-tolerance policy was applied.
The Court held that:
- Cannabis remains detectable long after consumption.
- A zero-tolerance policy effectively requires abstinence.
- Without proof of impairment, dismissal was disproportionate.
- The policy unjustifiably infringed the employee’s dignity and privacy.
Critical Limitation
The decision does not invalidate zero-tolerance policies universally. The outcome may differ where:
- Employees perform safety-sensitive roles
- Machinery or hazardous environments are involved
- There is demonstrable impairment
Strategic Takeaways
- Substance policies must be rational and role-specific.
- Positive testing alone may not justify dismissal.
- Employers must link policy enforcement to safety or performance risk.
The era of blanket enforcement is over. Risk-based assessment is now required.
3. Large-Scale Retrenchments: Compensation as a Standalone Remedy
In Regenesys Management v Ilunga (2024), the Constitutional Court clarified the Labour Court’s jurisdiction and the availability of compensation in large-scale retrenchments.
The Clarification
Section 189A(13)(d) of the Labour Relations Act permits compensation as a standalone remedy where procedural fairness was not followed and corrective relief is no longer appropriate.
Previously, compensation was often viewed as secondary or corrective. The Court has now confirmed it may be final and independent.
Consequences for Employers
- Procedural compliance is not optional.
- Consultation processes must be genuine and well-documented.
- Risk exposure persists even after retrenchments are concluded.
Large-scale retrenchments now carry materially higher procedural risk.
4. Police Liability During Violent Strike Action
In Minister of Police v Umbhaba Estates, the Supreme Court of Appeal held that police may be liable for failing to act where strike-related violence is foreseeable.
The Facts
- Strike action escalated into intimidation, damage and criminal conduct.
- The employer repeatedly requested police assistance.
- Police intervention was inconsistent and inadequate.
The Court found:
- The harm was reasonably foreseeable.
- The police failed to take reasonable preventative steps.
- Their conduct was negligent.
Why It Matters
Employers are entitled to lawful protection during industrial unrest. Police have a constitutional obligation to act reasonably where violence is foreseeable.
Industrial action does not dilute the duty to maintain public order.
PART II
PRACTICAL GUIDES FOR EMPLOYERS
1. Sick Leave: Rights, Proof and Abuse
Statutory Entitlement
Under the BCEA:
- Employees working more than 24 hours per month qualify.
- Sick leave equals six weeks’ worth of working days over a three-year cycle.
- During the first six months, leave accrues at one day per 26 days worked.
Medical Certificates
Employers may require a medical certificate where:
- Absence exceeds two consecutive days; or
- There are more than two absences within eight weeks.
Certificates must be issued by registered medical practitioners and confirm incapacity.
Traditional healer certificates are not automatically binding, but context may matter.
Abuse and Misconduct
Courts have upheld dismissal where employees:
- Act dishonestly
- Abuse sick leave
- Rely on fraudulent documentation
However, employers must prove misconduct. Suspicion is insufficient.
Clear policies and consistent enforcement remain essential.
2. Business and Human Rights: A Governance Imperative
Business and Human Rights (BHR) and ESG considerations are increasingly embedded within South African governance expectations.
Although there is no standalone BHR statute, obligations arise through:
- The Constitution
- Labour legislation
- Environmental law
- Anti-corruption frameworks
- Companies Act social and ethics requirements
Core Responsibilities
Businesses must:
- Avoid causing human rights harm
- Identify and mitigate risk
- Address adverse impacts
- Implement grievance mechanisms
Common Risk Areas
- Supply chain labour standards
- Workplace discrimination and harassment
- Occupational health and safety
- Environmental impact
- Community relations
- Corruption exposure
Practical Steps
- Adopt a formal human rights policy
- Conduct targeted due diligence
- Review supply chain contracts
- Implement reporting and monitoring structures
Human rights risk is now a board-level governance issue.
3. Managing Strikes: Operational Discipline
Strikes require structured, legally defensible management.
Essential Actions
- Confirm the legality of the strike.
- Ensure surveillance and documentation systems are operational.
- Communicate clearly with both striking and non-striking employees.
- Enhance security where necessary.
- Activate contingency plans for critical operations.
- Engage constructively with union representatives.
- Protect employees who choose not to strike.
- Maintain a detailed strike diary.
- Manage external communications carefully.
- Keep strike-related policies current.
- Address underlying causes post-strike.
Courts favour employers who demonstrate reasonableness, proportionality and good faith.
Preparation determines resilience.
CONCLUSION
Labour law compliance is no longer purely technical. It is strategic.
Employers must navigate:
- Constitutional scrutiny
- Procedural accountability
- Workplace rights balancing
- Governance expectations
Sound policy, disciplined documentation and forward planning are the differentiators.
DISCLAIMER
This publication provides general information on developments in South African employment and labour law. It does not constitute legal advice. Specific advice should be obtained in relation to any particular matter.
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