As we have reached the halfway mark of 2026, it is worth asking an important question: What are the Courts telling employers this year?
While the fundamental principles of South African labour law remain unchanged, recent decisions of the Labour Court, Labour Appeal Court and Constitutional Court continue to reinforce one consistent theme, employers who make well-intentioned but legally flawed decisions expose themselves to significant risk.
Whether dealing with performance, resignations, retrenchments or employment equity, the message from our Courts has been remarkably consistent: fairness is determined not only by what an employer decides, but by how that decision is reached.
Below are five important trends emerging from the first half of 2026.
1. Constructive dismissal remains difficult to prove – but employers should not become complacent
One of the more common misconceptions amongst employers is that an employee who resigns cannot later pursue an unfair dismissal claim. Recent decisions have once again confirmed that this is not correct.In Jacobs v CCMA and Others and Mokoetle v Gijima Holdings South Africa (Pty) Ltd, the Labour Court reiterated that an employee alleging constructive dismissal bears a significant evidentiary burden. It is not enough to demonstrate that the workplace was unpleasant or stressful. The employee must establish that continued employment became objectively intolerable and that resignation was the only reasonable option available to that employee.
Similarly, the Constitutional Court in Maleka v Boyce N.O. and Others recently reaffirmed that constructive dismissal requires objective proof that the employer’s conduct destroyed the relationship of trust to such an extent that resignation became unavoidable.
For employers, these decisions are reassuring, but they should not encourage complacency. Most constructive dismissal claims arise from unresolved grievances, workplace bullying, failures to investigate complaints, unreasonable management conduct or unilateral changes to employment conditions. Prompt intervention remains the most effective way to minimise risk.
2. Procedural fairness continues to determine the outcome of retrenchments
The commercial rationale for restructuring may be sound, but the courts continue to scrutinise whether employers genuinely complied with section 189 of the Labour Relations Act.
A recent Labour Court decision in De Jager and Others v Methano Group (Pty) Ltd demonstrates the point. Although operational requirements may justify retrenchments, the employer’s failure to conduct meaningful consultation rendered the dismissals procedurally unfair, resulting in compensation being awarded to the affected employees.
The lesson remains unchanged. Consultation is not intended to inform employees of a decision already made. It is a genuine joint consensus-seeking process during which alternatives to dismissal, selection criteria, timing, severance benefits and measures to avoid retrenchment must be properly considered.
Employers should therefore ensure that consultation begins before decisions become final.
3. Employment equity has entered a new era
Employment equity has become one of the most significant legal developments affecting South African employers.
Following the implementation of the Employment Equity Amendment Act and the introduction of sectoral numerical targets, the Department of Employment and Labour has made it clear that compliance is entering an enforcement phase.
The Constitutional Court recently declined to suspend the implementation of the amended employment equity framework, meaning designated employers must continue aligning their Employment Equity Plans with the applicable sectoral targets while broader constitutional challenges continue.
For employers, employment equity is no longer simply an annual reporting exercise. It now influences recruitment, succession planning, promotions, workforce planning and, importantly, eligibility to obtain Employment Equity Compliance Certificates required for most state contracts.
4. Good performance management still wins cases
Although there have been no landmark judgments fundamentally changing the law relating to poor performance during the first half of 2026, the CCMA and Labour Court continue to apply long-established principles with consistency.
Employers frequently encounter difficulty not because an employee was not meeting the required standard, but because there is insufficient evidence demonstrating that expectations were clearly communicated, appropriate guidance was provided, performance was monitored and the employee was afforded a reasonable opportunity to improve.
The distinction between misconduct and incapacity arising from poor performance remains critical.
Where employers invest time in structured performance management, maintain accurate documentation and provide genuine support before dismissal is contemplated, they remain significantly better positioned to defend unfair dismissal claims.
5. Process remains the greatest litigation risk
Perhaps the strongest theme emerging from the first half of 2026 is that employers continue to lose disputes because of procedural shortcomings rather than poor commercial decisions.
Whether dealing with recruitment, disciplinary action, retrenchments, employment equity or grievances, the courts consistently examine whether employers acted rationally, fairly and in accordance with the procedures prescribed by labour legislation.
This is particularly important because procedural defects are often avoidable. Early legal advice, properly trained managers and carefully documented decision-making frequently determine whether a matter is resolved internally or proceeds to lengthy litigation.
Looking ahead
If the first six months of 2026 have taught employers anything, it is this: labour law is increasingly focused on the quality of workplace decision-making.
The Courts continue to recognise that businesses must make difficult commercial decisions. However, they expect those decisions to be implemented fairly, transparently and in accordance with established legal principles.
Employers who regularly review their employment contracts, disciplinary procedures, performance management systems, retrenchment processes and employment equity practices will be considerably better placed to avoid costly disputes than those who seek legal advice only after proceedings have commenced.
As we enter the second half of 2026, remaining informed is no longer optional, it is an essential component of effective risk management.
The legal landscape continues to evolve, and so should your workplace practices. If you require assistance reviewing your employment policies, managing a workplace dispute or navigating a complex labour law issue, please contact our team. We are committed to providing practical, strategic advice that helps employers manage risk and resolve workplace challenges effectively.
