Sechaba Motloung

Sechaba Motlloung heads up Goldberg's drafting division, which services over 1,000 clients to help them resolve their labour issues at the workplace, at arbitration, and in Court.

Sechaba Motlloung is a superior drafter of pleadings. Sechaba has years of experience and can provide specialist advice on any situation. Call him now. 

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The new Code of Good Practice on Dismissal in South Africa has been finalised and is effective immediately after its publication on 4 September 2025. This code replaces both the previous Schedule 8 Code and the Code of Good Practice on Dismissal Based on Operational Requirements.

Key Updates:

- Fairness with Flexibility for Small Businesses: The code acknowledges the operational constraints small businesses face and permits greater procedural flexibility, balancing fairness with feasibility.
- Modernised Approach to Disciplinary Processes: Emphasises a context-sensitive corrective discipline model, reserving dismissal for cases where continued employment is clearly untenable due to serious misconduct, incapacity, or operational necessity.
- Enhanced Clarity on Incapacity and Probation: Provides detailed guidance for dismissal due to incapacity, including reasons like incompatibility, incarceration, and ill health, as well as probation-related termination standards.
- Streamlining Retrenchment Process: Incorporates operational-requirements dismissals into one cohesive framework, including a new annexure detailing the minimum content required for a Section 189(3) notice².

Implications for Employers:

- Misconduct: Progressive discipline remains the guiding principle, with formal disciplines not mandated but advisable, especially where a dismissal may be challenged.
- Incapacity: Employers must explore alternatives to dismissal, considering factors like incompatibility, medical incapacity, and other forms of incapacity.
- Operational Requirements and Retrenchments: Requires meaningful consultation, fair and objective selection criteria, and statutory severance, with preferential re-employment for retrenched workers encouraged when comparable positions become available ³.

Takeaway: The new code signals a gradual move towards a less punitive, more restorative approach to workplace discipline, emphasising fairness, proportionality, and context-sensitive application.

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Goldberg Inc cases of 2025

 The Labour Court of South Africa, Johannesburg, delivered a judgment in the case of Sepheka v Gumede NO and Others (JR1837/20) [2025] ZALCJHB 133 on March 18, 2025.

The case is available at  https://www.saflii.org/za/cases/ZALCJHB/2025/133.html

The court reviewed and set aside an arbitration award that found the applicant's dismissal substantively fair.

Key Findings
- The court found that the delay in instituting disciplinary proceedings against the applicant was unreasonable and caused material prejudice.
- The Third Respondent (Department of Home Affairs) failed to provide an explanation for the delay.
- The court concluded that the applicant's dismissal was substantively unfair.

Court Order
1. The application to condone the late filing of the review application was granted.
2. The arbitration award was reviewed and set aside.
3. The court substituted the award with an order that the dismissal of the applicant was substantively unfair.
4. There was no order as to costs.

A brilliant victory for Goldberg Attorneys and the instructing attorneys 

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LEWUSA obo Maesela and Others v RGM Cranes (Pty) Ltd (JS863/21) [2025] ZALCJHB 173 (29 April 2025)

The case is available at https://www.saflii.org/za/cases/ZALCJHB/2025/173.html

The judgment is a resounding affirmation of the Labour Court’s commitment to upholding fairness, transparency, and substantive justice in retrenchment disputes. Delivered by Acting Judge Molotsi, the decision demonstrates the Court’s unwavering vigilance in protecting employees from superficial consultation processes and arbitrary selection criteria, particularly under the challenging economic climate of the COVID-19 pandemic.

The case arose from the dismissal of three long-serving employees, represented by the union LEWUSA, who were retrenched ostensibly for operational requirements. RGM Cranes sought to justify its actions on the basis of lost sales, project delays, and financial strain during the pandemic. While these circumstances were undoubtedly difficult, the Court rightly reminded employers that economic hardship does not absolve them of the duty to follow the stringent requirements of section 189 of the Labour Relations Act (LRA).

In its analysis, the Court highlighted several key shortcomings in RGM’s process. Firstly, the consultation meetings were perfunctory and failed to engage in the genuine, joint consensus-seeking process envisioned by the LRA. Critical issues—such as alternatives to retrenchment, proper disclosure of financial information, and fair selection criteria—were never meaningfully canvassed. The Court rightly noted that consultation cannot be reduced to a tick-box exercise, especially when livelihoods are at stake.

Secondly, the Court found the selection criteria deeply flawed. Instead of relying on objective and transparent measures such as LIFO (last-in, first-out), RGM factored in subjective elements like salary levels, alleged “difficult” personalities, and even an employee’s medical condition. Such criteria not only undermine fairness but also risk entrenching discrimination and victimisation. By rejecting this approach, the Court reinforced the principle that retrenchment decisions must be based on fair, objective, and consistently applied standards.

Importantly, the Court gave significant weight to the employees’ evidence that they were capable of performing a variety of roles within the company, and that alternative measures—such as deeper salary reductions or redeployment—had not been properly considered. This reflects a balanced approach: acknowledging the employer’s financial distress, while insisting that employees’ rights to fairness and dignity are not sacrificed in the process.

The judgment deserves praise for its clarity, principled reasoning, and insistence that retrenchment law is not a mere formality but a substantive safeguard against unjust dismissal. By holding RGM accountable, the Court sent a strong message: even during unprecedented crises, employers must honour both the letter and spirit of the LRA. The case stands as a significant precedent, affirming that fairness, objectivity, and genuine consultation are the cornerstones of lawful retrenchment in South Africa.