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Article 07/2021

Labour Edge

If an employer deems it fit to include elaborate procedures in a contract of employment, which go beyond what is required in terms of the LRA, is the employer entitled to simply revert to the default position of the LRA?

The labour court, in Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), dealt with this issue as follows: the express incorporation of the code in the employee’s conditions of employment, both in the contract of employment and the code itself, suggested that it had been intended to create enforceable obligations, and not obligations which could simply be jettisoned at the whim of one party. If the content of the procedures was far less detailed and simply provided an opportunity to exercise the right to audi alteram partem within a rudimentary hearing framework, it might be more plausibly argued that the employer enjoyed greater freedom in determining the conduct of an inquiry. That was not the kind of procedure under consideration here. The fact that the employer had seen fit to include such an elaborate procedure in the contract of employment, which went beyond what is required of it in terms of the LRA, did not mean that it could simply revert to the default provisions of the LRA, when its own procedure did not suit it.

 

 

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?