By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
South Africa’s labour laws that existed pre-transformation were replaced with revolutionary legislation in the late 1990s and early 2000s. The trade union movement, which by that time was very strong and growing in size, was integrally involved in revolutionising our labour legislation. In particular, COSATU, a large and left-wing union movement, was, and still is, in an alliance with the ANC; which further strengthened the hand of the labour movement. Furthermore, the legislation has been revised several times over the past 25 years.
As a result, the current labour legislation heavily favours the rights of employees and trade unions and poses a major challenge to employers. Arbitrators and court judges are obligated by the law to watch over the rights of employees who are seen as having less power and resources than employers and therefore as vulnerable and in need of strong protection. And many of these arbiters are happy to oblige.
Even the most fair-minded and even handed of arbiters are making employee-friendly decisions due to the focus of the law on protection of employees and on the fact that, in many cases, the onus of proof of fairness falls on the shoulders of the employer.
The effect of this state of affairs has prompted many employers to use technical issues as a weapon for avoiding litigation. And many employers have the money and the access to legal expertise to wage this type of legal battle. Technicalities that employers might use in this way include, amongst others, applying for reviews and rescissions of arbitration awards and rulings and dragging cases through the Labour Appeal Court, Supreme Court and Constitutional Court.
Another tactic that such employers might use is opposing applications for condonation of lateness. Where the employer succeeds with opposing condonation applications the effect is that the CCMA or bargaining council effectively throws out the employee’s case before arbitration can take place.
However, this tactic is not always successful. In the case of Tunzi vs UPS South Africa (Lex Info 30 January 2026. Labour Court case no JR158/22) the employee was dismissed for fraud in that he allegedly filled in an attendance register wrongly. His defence had been that he had filled it in correctly but someone else had amended the record he had inserted. He referred his dispute 124 days late and had to apply for condonation of lateness. The employer argued that this degree of lateness was excessive and that Tunzi had failed to explain certain of the periods of lateness within the 124-day period. The employer added that the employee had failed to argue prospects of success in his application for condonation. The employee’s response was that he had indeed argued prospects of success and that his lateness had been due to the fact that his union had been remiss. As the arbitrator turned down the employee’s condonation application, the employee took that ruling to court.
In the Labour Court the employee was not represented. The Court found in the employee’s favour despite the excessive lateness of his referral and despite the employer’s argument that portions of this lateness period had not been explained. The Court based its ruling on the point that the employee would be greatly prejudiced if his unfair dismissal case was not heard, and ordered the bargaining council to set a date for arbitration.
This outcome reflects the ongoing shift of court decisions to the left and emphasises the importance of employers making sure that their managers are able to understand and implement labour law in a way that is unassailable in court.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve labour law knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
