A service provider receives an uncomfortable instruction from one of its clients:
“We no longer want this employee on our premises.”
The reason may be alleged misconduct, poor performance, a breakdown in the relationship, or simply that the client no longer wants to work with that particular employee. From a commercial perspective, the employer’s dilemma is obvious. The client may represent a significant portion of its business and may have made it clear that the employee will not be permitted to return.
The temptation is therefore to treat the matter as straightforward: if the employee can no longer work at the client’s premises, the employment relationship must end. From a labour-law perspective, however, it is not quite that simple.
A client may have significant contractual and commercial influence over where a service provider’s employees perform their duties. That does not mean the client assumes control over the employment relationship. The distinction is critical.
A client may demand that an employee leave its premises. The employer must still determine whether there is a fair basis to end that employee’s employment.
- Removal from a Site Is Not Dismissal from Employment
The starting point is important: a client’s demand that an employee be removed from its premises does not automatically provide the employer with a fair reason for dismissal.
Section 188 of the Labour Relations Act 66 of 1995 (“the LRA”) requires an employer to establish a fair reason for dismissal relating to the employee’s conduct, capacity or the employer’s operational requirements, together with a fair procedure.
In other words, while the client may decide who it is prepared to allow onto its premises, the employer remains responsible for what happens to the employment relationship.
This principle was recognised in Lebowa Platinum Mines Ltd v Hill (1998) 7 BLLR 666 (LAC), where the Labour Appeal Court made it clear that the mere existence of a third-party demand is not sufficient. The employer must still consider whether the demand is properly founded, whether the threat is genuine, whether the client can be persuaded to reconsider, and whether alternatives to dismissal exist.
A client saying, “We want him gone,” should therefore ordinarily be the beginning of the employer’s enquiry, not the end of it. The employer should establish what lies behind the instruction and whether the situation can be resolved without ending the employee’s employment.
This is particularly important where the employer has other options available to it.
- What If the Client Alleges Misconduct?
Where the client’s demand is based on alleged misconduct, the employer should be particularly careful.
If a client accuses an employee of theft, harassment, insubordination or another form of misconduct, the employer cannot simply accept the allegation as proven and terminate employment. The employer should investigate the allegation and, where appropriate, deal with it through its disciplinary process. A client’s dissatisfaction with an employee does not transfer the employer’s disciplinary authority to that client.
This issue arose in Nape v INTCS Corporate Solutions (Pty) Ltd (JR 617/07) [2010] ZALC 33; (2010) 31 ILJ 2120 (LC); [2010] 8 BLLR 852 (LC) (10 March 2010). The employee had distributed offensive material using the client’s email facilities. His employer held a disciplinary enquiry and imposed a final written warning. The client was dissatisfied with that sanction and refused to allow the employee to return to its premises.
The employer eventually attempted to retrench the employee because no alternative position was available. The Labour Court found the dismissal substantively unfair. The employer could not simply allow the client’s dissatisfaction with the disciplinary sanction to dictate the ultimate outcome of the employment relationship.
The lesson for employers is important:
A client’s view of an employee’s conduct cannot replace the employer’s own obligation to determine an appropriate and fair response.
If the allegation amounts to misconduct, the employer should deal with it as misconduct. If the employee is ultimately found guilty and dismissal is an appropriate sanction, that is a different question. The employer must still reach that conclusion through its own fair process.
- Can the Matter Become an Operational Requirements Issue?
Yes, in appropriate circumstances.
A client’s refusal to allow an employee back onto its premises may create a genuine operational difficulty for the employer. This is particularly relevant in industries such as security, cleaning, logistics, construction and other outsourced services where employees may be deployed almost exclusively at client sites.
If the employee can no longer perform work at the relevant site, the employer may ultimately have to consider dismissal based on operational requirements. But this does not mean that retrenchment is automatic.
Before proceeding, the employer should properly investigate the client’s demand, consider whether the situation can be resolved, and explore reasonable alternatives to dismissal, including possible alternative placement or redeployment.
The employer must also confront the actual reason for the operational difficulty. This was illustrated in Buthelezi and Others v Mabotwana Security Services (JS821/22) [2025] ZALCJHB 75 (28 February 2025), where the employer effectively removed employees from a client site and later retrenched them. The Labour Court found that the employer relied on contradictory reasons for the retrenchment and failed to consult or properly investigate alternatives.
The dismissals were found to be substantively and procedurally unfair. The important point is that section 189 of the LRA cannot simply be used to provide a more convenient explanation for a dismissal. If the real issue is that a client refuses to allow an employee back onto its premises, the employer should address that honestly and properly during the consultation process.
The employer should be able to demonstrate why the operational difficulty exists, what alternatives were considered, what was discussed with the affected employee, and why dismissal ultimately became necessary.
- What About the Service Agreement?
Employers sometimes rely on provisions in service-level agreements allowing a client to demand the removal of an employee from its premises.
Such provisions may regulate the commercial relationship between the client and the service provider, but they do not override the LRA. A fundamental distinction exists between a contractual right to have an employee removed from a particular site and a right to terminate that employee’s employment.
The first may belong to the client. The second remains the employer’s responsibility.
A contractual clause may therefore explain why the employer cannot keep an employee at a particular client site. It does not, by itself, establish that dismissal is fair.
Employers should be particularly cautious about treating contractual wording such as “the client may request the removal of personnel” as though it were equivalent to “the client may require the termination of employment”. Those are very different propositions.
- What Should the Employer Do?
When a client demands an employee’s removal, employers should resist the urge to terminate employment immediately.
The first step should be to establish why the employee is being removed. Where possible, the employer should obtain the client’s reasons, investigate any allegations of misconduct, engage with the client to determine whether the situation can be resolved, and consider whether the employee can be transferred or redeployed elsewhere.
The employer should also examine the employee’s employment arrangements and the nature of the work performed. If the employee was appointed specifically for a particular client or site, this may be relevant to the operational analysis. Still, it does not eliminate the employer’s obligation to consider alternatives and follow a fair process.
Where the situation genuinely creates an operational requirement, the employer should follow a proper consultation process under section 189. Most importantly, the employer should ensure that the reason ultimately relied upon for dismissal is the real reason.
A useful question for an employer to ask is: “If the client’s instruction were removed from the equation, would we independently have a fair reason to dismiss this employee?” If the answer is no, the employer needs to exercise considerably more caution. The employer should then ask a second question: “What reasonable alternatives have we considered before concluding that dismissal is necessary?”
These questions can help prevent commercial pressure from becoming an unlawful shortcut to dismissal.
- Key Takeaways / Conclusion
Third-party demands create a difficult intersection between commercial reality and labour-law obligations.
A client may have a legitimate business reason for refusing to allow an employee onto its premises. The employer may face significant commercial consequences if it cannot comply with the client’s instruction. In some circumstances, the resulting operational difficulty may ultimately justify a dismissal based on operational requirements.
But the route from “the client wants this employee removed” to “the employee must be dismissed” is not automatic.
Where misconduct is alleged, the employer should investigate and follow its own disciplinary process. Where an operational requirements dismissal is contemplated, the employer must properly establish the operational rationale, consider alternatives and comply with the consultation requirements of section 189.
The commercial agreement between the parties may explain the problem. It does not determine whether the dismissal is fair. Ultimately, the client may control access to its premises.
The employer controls the employment relationship, and it is the employer who will ultimately have to justify the dismissal.
Article By Wesley Field
Provincial Manager at Consolidated Employers Organisation (CEO SA)
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