Key Labour Law Updates for 2025

By David Short | Director and Zethembe Manukuza | Candidate Attorney

It has been a busy start to the year in the Employment and Labour space with a number of changes and proposed changes to legislation being tabled.

1. The annual increases to the National Minimum Wage Act have been promulgated and take effect from 1 March 2025.
2. There is a proposed amendment to the Code of Good Practice dealing with dismissal, which if approved, will replace the existing Code of Good Practice in certain respects. The period for public comment has expired and now we await the final product. The new Code may exempt small employers from having to comply with all the procedural requirements in respect of dismissals based on misconduct.
3. Significantly, the National Economic Development and Labour Council (NEDLAC) are in the process of considering a raft of amendments to the Labour Relations Act 66 of 1995 as well as to the Basic Conditions of Employment Act 75 of 1997 which if accepted, may take effect in the next couple of years.
4. In late 2023 an Application served before the High Court of South Africa, Gauteng Division, Johannesburg, declaring the current Section 25 of the Basic Conditions of Employment Act 75 of 1997 unconstitutional and discriminatory towards men who are required by virtue of their family circumstances, to care for new born / adopted children in order to allow their spouses to conduct their businesses as they are not entitled to the statutory prescribed maternity leave which is only available to mothers. Whilst the Court did find that the provisions of Section 25 of the BCEA are on the face of it, discriminatory and proposed certain amendments to Section 25 as an interim measure, pending investigation by the Legislature , this Judgment has not as yet been confirmed by the Constitutional Court, as is required in terms of Section 167 (5) of the Constitution of South Africa.
5. Whilst the matter did come before the Constitutional Court, late last year, such Court is yet to hand down its Judgement.
6. Whilst it is widely anticipated that the Constitutional Court could accept the High Court’s Judgment at least in part, it is too early to anticipate with any precision the fate of the present Section 25 of the BCEA.

It is our view that whilst the proposed amendments may have far reaching consequences for employers and employees, that employers and employees will adapt to such changes as they have done in the past, and that this will serve to bring stability to employment relationships.

We remain available to assist and advise our valued clients as well as our readers with sound trusted advice on how to deal with the changes which are on the horizon.

Winds of Change

The National Economic and Labour Council (NEDLAC) is currently considering proposed amendments to the Labour Relations Act 66 of 1995 and a final report has been released. We set out here under the most significant proposed changes.

Some of the amendments are aimed at making the Labour Court, Labour Appeal Court and CCMA more efficient, however, there are a number of proposed amendments which if they pass through the legislative process, will have a significant impact on the employees and employers alike.

Section 186 – the amendment to this Section will expand the definition of employment in particular by expanding the definition with regard to constructive dismissal to cover situations where employees believe that continued employment is intolerable due to employer conduct. This amendment if it is approved, will result in a lower threshold of proof, which employees will need to cross when proving the existence of a constructive dismissal and may make it easier for employees to prove a constructive dismissal.

A new Section (188) (2) - is proposed to be inserted into the LRA in that a 6 month qualifying period will be introduced during which new employees would have limited protection against unfair dismissal and would only be entitled to bring claims in respect of automatically unfair dismissal or discrimination. The net effect is that employees with less than 6 months’ employment will not be in a position to claim an unfair dismissal or an unfair labour practice.

Section 188 (3) – an amendment to the LRA is proposed by inserting a new Section 188 (3) dealing with the test for procedural fairness requiring that employees must have had a fair and reasonable opportunity to have responded to the reason for dismissal. Conceivably this will herald a less formal approach to disciplinary hearings.

Section 189 A – An amendment in terms of Section 189 A of the LRA is proposed. Large scale retrenchments are to be referred to mandatory facilitation by the CCMA before a dismissal can take place.

An amendment is proposed to Section 189 A of the LRA increasing the consultative period in terms of large scale retrenchments to 120 days instead of 60.

An amendment to Section 189 A the LRA where unfair dismissal disputes relating to operational requirements in respect of large scale retrenchments may be referred to the Labour Court after the conclusion of facilitation without a further referral for conciliation, but conciliation will be required where there was no facilitation.

A change is proposed to Section 189 A of the LRA where a challenge to all aspects of the dismissal based an operational requirements dismissals can be made after the dismissal. This will effectively make the existing Section 189 A (13) redundant, which requires a claim for procedural unfairness in large scale retrenchments to be within 30 days after notice of termination has been issued by the employer.

Section 193 (2A) - An amendment is proposed to the LRA inserting a new Section 193 (2A) imposing a limitation on remedies available for highly paid employees. Reinstatement can only be granted in case of automatically unfair dismissal. In respect of other dismissals of highly paid employees they are to be limited to compensation as a remedy.

Section 194 (1) and 194 (4) – An amendment is proposed to Section 194 (1) and 194 (4) of the LRA with respect to compensation as a remedy to highly paid employees in respect of unfair dismissal. Compensation is to be capped but no cap is applicable in respect of automatically unfair dismissals and unfair labour practices involving whistleblowing.

The high earning threshold is to be based on an amount of R1.8 million per annum to be adjusted annually by CPI.

Section 198 – the proposed change to this Section aims to afford increased protection for employees in non-standard employment, such as temporary or part time workers, to ensure they receive fair treatment and benefits.

Amendments proposed to the Basic Conditions of Employment Act 75 of 1997 (BCEA) -an amendment is proposed to the definition of employee to include on call workers relating to workers who are obliged to hold themselves available for work by their employers but not guaranteed work.

Section 44 - It is proposed that the prohibition contained in this Section with regard to child labour be expanded to cover all work by children, not only in terms of a formal employment contract. This could conceivably cover work by children under the age of 15 in family businesses or even in schools, etc.

Section 33 – it is proposed that the penalties which may be imposed for breaches of the BCEA be increased particularly in respect of offences involving child labour where the maximum term of imprisonment is to be increased to 6 years.

A Precipitous Move

When employers inappropriately impose the normal retirement age of 65. Slabbert v Muji Motor Group (Pty) Ltd (2024) 45 ILJ 2817 (LC)The above matter came before the Labour Court as an automatically unfair dismissal relating to an allegation that the employer had circumvented a transfer of Mr Slabbert’s employment to the purchaser of the business in terms of Section 187 (1) (g) of the LRA alternatively had committed an automatically unfair dismissal based on age as contemplated in Section 187 (1) (f) of the LRA.

The Facts

Mr Slabbert was employed by the motor dealership Autohaus as a sales consultant.

Some time after Mr Slabbert turned 65, he was promoted to the position of Used and New Car Sales Manager at Autohaus.

During 2020 the Muji Motor Group (Pty) Ltd (Muji) purchased Autohaus as a going concern and the contracts of all the employees of Autohaus including Mr Slabbert’s contract of employment were transferred to Muji in terms of Section 197 of the LRA.

Mr Slabbert, who had just turned 70 at the time of the transfer of the business of Autohaus, was advised by the Director of Muji that as he had reached the normal retirement age of 65 for the motor industry, and as he had rejected Muji’s offer of a freelance position, he was being retired.

Mr Slabbert approached the Labour Court claiming an automatically unfair dismissal as contemplated in terms of Section 187 (1) (g) alternatively 187 (1) (f) of the LRA.

The Labour Court then considered the facts of the matter in order to determine the proximate cause of Mr Slabbert’s dismissal, i.e. whether he was dismissed as part of a stratagem to circumvent the Provisions of Section 197 of the LRA or whether he was dismissed based on age.

The Court concluded that the proximate cause of Mr Slabberts’ dismissal was not the transfer of Autohaus to Muji as a going concern but was rather his age.

The Court then considered Muji’s contention that the normal retirement age in the motor industry was 65 years and that this had become a term and condition of his employment with Autohaus and subsequently Muji.

The Court’s Findings

The court went directly to the Main Collective Agreement for the Motor Industry (MIBCO). The Court, however, found that the retirement age of 65 as contemplated in the MIBCO Main Agreement only applied to certain categories of employees falling under such Main Agreement, and that Mr Slabbert did not fall within the categories of employees as included in the Main Agreement. The retirement age of 65 contemplated in the Main Collective Agreement therefore did not apply to him.

The Court failed to accept that the age of 65 could broadly be considered the normal retirement age in the motor industry without proof for this allegation being furnished by Muji.

More particularly, the Court found that Muji had failed to show that the retirement age of 65 was normal for employees employed in the capacity of Sales Managers, such as Mr Slabbert.

The Court then found that Mr Slabbert had been automatically unfairly dismissed as contemplated in Section 187 (1) (f) and awarded him compensation equivalent to 12 months’ remuneration.

In Conclusion

1. Muji was fortunate that the Court only awarded Mr Slabbert compensation equivalent to 12 months’ remuneration as the maximum compensation which the Court can award in the case of an automatically unfair dismissal, is 24 months.
2. The Court has effectively dispelled the broad sweeping assumption that the age of 65 years is the normal retirement age across industries and occupations in South Africa and has held that the normal retirement age must be determined with reference to the particular job and sector/industry in which the employee is employed.
3. The Judgment highlights the importance of specifying a retirement age in contracts of employment and not simply relying on a general opinion that the age of 65 is a universally accepted normal retirement age.
4. To the extent that employers find themselves in situations where they have to rely on a normal retirement age, they must allege and prove the normal retirement for the particular occupation within a particular industry. It is therefore no longer sufficient for employers to prove the normal retirement age with within an industry but need to go further and prove that such normal retirement age is applicable to the occupation the employee is employed in. This is not a straightforward exercise, and employers should think twice before simply relying on a normal retirement age to retire employees.

Maternity and Paternity Leave

What is good for the goose is good for the gander: a claim for equal benefits for parents of newborn or adopted children

Van Wyk and Others V Minister of Employment and Labour and Others (Centre for Human Rights, University of Pretoria and Others as Amici Curiae) [2024] 1 BLLR 93 (GJ)

• The High Court handed down a judgment in the case of Van Wyk and others v Minister of Employment and Labour and others scrutinising certain provisions of Chapter 3 of the Basic Conditions of Employment Act 75 of 1997 (BCEA), which deals with leave entitlements. The case arose from an application in terms of section 172 of the Constitution of the Republic of South Africa, seeking a declaration of unconstitutionality of these provisions.

• The application specifically challenged sections 25, 25A, 25B, and 25C of the BCEA, which regulate maternity and parental leave, arguing that they are unconstitutional due to unfair discrimination. The challenged provisions of the BCEA differentiate between three categories of children. First, children born to a mother, secondly, adopted children, and thirdly, children born through surrogacy.

Children Born to a Mother

• Pertaining to the first category, section 25(3) of the BCEA prevents a mother from attending work duties for six weeks after the date of birth unless a doctor or midwife approves thereof.
• Section 25(1) of the BCEA further entitles a birth mother to a total of four consecutive months' maternity leave, with an option of taking leave one month prior to the expected date of birth.
• In contrast, section 25A(1) and 25A(2)(a) grant the father only 10 days of leave from the date of the child birth.
• Section 26 of the BCEA further provides protection to birth mothers prior to and after giving birth, ensuring that the working conditions under which she works under are not hazardous to her health or that of a child.

Adopted Children

• The second category, adopted children, is encapsulated in section 25B of the BCEA which deals with adoption leave and stipulates that an adoptive parent of a child who is below the age of two years is entitled to 10 consecutive weeks' leave and/or a 10 day leave as provided for in section 25A.

• Notably, the period of 10 weeks' leave is six weeks less than that to which a birth mother is entitled, i.e. 16 weeks/four months.

Children Born Through Surrogacy

• The leave entitlements for parents of children born through surrogacy are identical to those provided for adoptive parents; i.e. 10 weeks or 10 days as provided for in s25C.

The Simplified Applicants’ Claims

The court summarised the claims as follows:

1. “Section 25(1) is unconstitutional because no valid grounds exist to distinguish one parent-employee from another. Thus, both parents should be entitled to parental leave in equal measure and the failure provide so is unfair discrimination and violates the dignity of all parents.

2. The differentiation in the duration of prescribed leave available to each of the three classes of parents, ie a birth mother and father; adoptive parents and parents of a child born through surrogacy, constitutes unfair discrimination and violates the dignity of all parents. It is contended that all categories should enjoy an equal duration of leave.

3. Furthermore, the notion that the prescribed leave is available to adoptive parents only in respect of a child of less than two years of age is challenged as irrational and as unfair discrimination.”[1]

High Court Analysis

• The court considered various differences amongst all the categories of parenthood. It concluded that all mothers, regardless of whether they gave birth, adopted a child, or became parents through surrogacy, should be entitled to the same period of leave. The court emphasized that failure to do so would perpetuate inequality, violating section 9 of the Constitution.

• Regarding the differentiation between fathers and mothers, the court criticized the assumption that mothers should be the sole caregivers, reinforcing the idea that fathers should equally share the caregiving role. The court also noted that this unequal recognition of fathers’ roles in childcare and denying them a free hand to choose for themselves the role they wish to play, impairs the dignity of both parents. The court found that the BCEA’s failure to provide equal recognition to both parents constitutes unfair discrimination.

• On the issue of the two-year cap for adoptive parents, the court took the view that it did not trigger a cogent complaint of unfair discrimination.

Remedy

• In conclusion, the court declared that the provisions of sections 25, 25A, 25B and 25C of the BCEA, and the corresponding provisions of the Unemployment Insurance Fund Act 63 of 2001 ("UIF Act"), sections 24, 26A, 27, 29A, are invalid by reason of inconsistency with sections 9 and 10 of the Constitution, to the extent that the provisions unfairly discriminate between mothers and fathers and further unfairly discriminate between one set of parents and another on the basis of whether their children were born of the mother, were conceived by surrogacy and were adopted.

• The court further suspended the declaration of invalidity for two years from the date of this judgment in order to allow Parliament to cure the defects and further held that pending remedial legislation being enacted, the provisions shall be read as to eliminate discrimination between mothers and fathers, as well as between the three categories of mothers, namely biological mothers, adoptive mothers, and commissioning parents in surrogate agreements with regard to leave entitlements.

Concluding Remarks

• Section 167(5) of the Constitution stipulates that “the Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status, before that order has any force.”
• This essentially means that up until the Constitutional Court confirms the decision made by the High Court declaring sections 25, 25A, 25B and 25C of the BCEA, and the corresponding provisions of the UIF Act (sections 24, 26A, 27, 29A) unconstitutional, such a decision has no legal force and the status qou remains as in for now.
• The matter was heard by the Constitutional Court late last year (2024) and its judgement is awaited.
• Given the reasoning in Deputy Judge President Sutherland’s judgment in the High Court, it is likely that the Constitutional Court will uphold the High Court’s decision, thus eliminating the current differentiation between categories of parents as outlined in Chapter 3 of the BCEA. This will not only help to end the alleged unfair discrimination but also better reflect the modern realities of family structures and parenting roles.

[1] Van Wyk and Others V Minister of Employment and Labour and Others (Centre for Human Rights, University of Pretoria and Others as Amici Curiae) [2024] 1 BLLR 93 (GJ) at para 13.