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Article 09/2021

Labour Edge

An employee is not obliged to challenge the procedural unfairness of his or her dismissal in the CCMA.  The employee may also challenge the non-compliance of such procedure with the contractual obligations of an employer.  Such challenge will occur in the labour court and will be for specific performance or the cancellation of the agreement and a claim for damages.  On what basis did the labour court recently, in Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), hold that it is a conceptual mistake to collapse these two causes of action simply because they both concern procedural non-compliance?

  1. It is trite that noncompliance with disciplinary procedures might lead to a finding that a dismissal was procedurally unfair, but the power of an arbitrator is limited to awarding compensation. The CCMA is not empowered to determine the contractual lawfulness of a decision to dismiss an employee, in the absence of complying with a contractually binding pre-dismissal procedure. The contractual remedies for noncompliance with an obligatory procedure remedies are not equivalent to the remedy for procedurally unfair dismissal in the LRA.
  2. In this regard, in Ngubeni v National Youth Development Agency and Another (2014) 35 ILJ 1356 (LC), at paragraph [21], the court held, that; ‘Insofar as the remaining requirements relevant to the relief sought are concerned, there is no alternative remedy that is adequate in the circumstances. Ngubeni has no right to pursue a contractual claim in the CCMA, and the law does not oblige him to have recourse only to any remedies that he might have under the LRA. Equally, he is fully entitled to seek specific performance of his contract, and is not obliged to cancel the agreement and claim damages.’
  3. On the basis of the above differences, Legrange J, in Wereley, held that It is a conceptual mistake to collapse the two causes of action simply because both concern issues of procedural noncompliance.

 

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)?