Time for employers to keep up with case law

In a legal landscape shaped by evolving case law, employers must regularly review and update internal policies to ensure alignment with current legal standards and avoid unfair labour practices.

Case overview

The Labour Court in Johannesburg considered a review application in the matter of Bombela Operating Company (Pty) Ltd v CCMA & Others. The case concerned the precautionary suspension of employee Itumeleng Lehlokwa, who was accused of sharing confidential company documents with NUMSA. Lehlokwa challenged the suspension, arguing it was procedurally unfair under Bombela’s disciplinary code, specifically clause 5.6.3, which provides employees the right to make representations before precautionary suspensions. The CCMA arbitrator upheld this argument.

However, Bombela countered by citing the Constitutional Court’s decision in Long v South African Breweries (Pty) Ltd, which held that employers are not required to allow representations before precautionary suspension, provided the suspension is for a fair reason and causes no prejudice.

Legal questions 

• Whether Bombela’s disciplinary code, which had not been updated to reflect the Long’s case decision, still conferred a right to make representations to employees facing precautionary suspensions.
• Whether the arbitrator erred in finding the suspension procedurally unfair despite Lehlokwa not attempting to exercise the right to make representations.

Court findings

• The court affirmed that while Long’s case removed the general requirement for pre-suspension hearings, an employer’s own code or collective agreement remains binding if it explicitly provides such a right.
• Bombela’s failure to update its code did not nullify clause 5.6.3.
• However, since Lehlokwa never attempted to make representations, the court found no evidence that he was denied the opportunity.
• The arbitrator’s conclusion of procedural unfairness was deemed unreasonable and unsupported by the facts.

Take away points

• Employers must stay current with legal developments and ensure internal policies reflect prevailing case law.
• Failure to update policies may lead to adverse findings, especially where outdated provisions conflict with current legal standards.
• If an employee invokes a right under an internal code, employers must honor it even if broader case law no longer requires it.
• In this case, Bombela avoided liability because the employee did not attempt to exercise the right to make representations and would have been a different case had it been that the employee invoked his policy rights to make representations.