Gaps in the law can be problematic for employers 


Labour law expert Ivan Israelstam says the LRA still lacks some important detail.

The Labour Relations Act (LRA) was developed by negotiation between government, employers and trade unions. Due to the fact that parties had substantially different agendas they were often unable to agree on a number of important details of law which were therefore omitted from the LRA. Some detail as to the intention of the law is provided in the form of codes of good practice. For example, included in Schedule 8 of the LRA is The Code of Good Practice: Dismissal which guides parties as to procedures and principles that should be followed.

However, despite these codes the LRA still lacks some important detail such the circumstances under which an employer may fairly increase a penalty imposed on an employee. 

For example, in the case of Fourie vs Capitec Bank (2005, 1 BALR 29) Fourie was dismissed for failing to take out arrear cards. The arbitrator found that the employee had previously been given a final warning for the very same incident of poor performance. The dismissal was therefore found to be unfair and the employer was required to pay the employee compensation equivalent to 6 months’ remuneration. However, other decisions have allowed such penalty revisions in exceptional circumstances.


While it is clear from the above is that we cannot take any one case decision as gospel and employers are still advised to keep up with case law in their efforts to discover what fair treatment really means. This is because: (1), in many areas the CCMA and courts have agreed with each other and principles based on patterns of decisions are beginning to emerge in some areas of labour law; and (2), there are a few case law decisions that, while not yet part of a pattern, have been so well conceived and reasoned that they provide valuable guidelines to employers and employees.

The trouble with case law

The real challenge when turning to case law for help is the difficulty in understanding fully what the arbitrator or judge is saying in his/her finding and in grasping the meaning of the reasoning behind the decision. There are also examples of cases where two courts come up with different findings. Furthermore it can be tricky to identify those case decisions that are truly relevant to our own case, and Identifying patterns and principles arising from a series of cases so as to extract the legal principles highlighted by these patterns. Lastly, case law can be troublesome when arguing why a case decision refuting the outcome you seek should not be accepted.

All these factors especially come into play when it comes to implementing discipline and dismissal at the workplace. The ability to use case law wisely and effectively in the light of the pitfalls outlined above, therefore, requires highly intricate skills developed over many years. Employers therefore require intensive guidance from experienced experts in labour law in order to be able to apply the inexact science of case law analysis and application.

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Pamela Xaba is the founder of Nonkosi Creatives, and has over two decades of experience as a corporate HR professional. She is passionate about diversity and inclusion both in workspaces and society.