Skip to main content

Article 10/2021

Labour Edge

In Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), the employee sought an order for specific performance consequent on a decision that her dismissal had been void ab initio on the basis of the fundamental breach committed by her employer by dispensing with an enquiry before dismissing her.  On what basis did the labour court hold that reinstatement, from the date of dismissal, was the appropriate remedy for the employee (Wereley)?

  1. The employer had correctly pointed out that an order of specific performance is a discretionary remedy (see Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 777A-B).
  2. The primary relief sought by Wereley, consequent upon a finding that her dismissal was void ab initio, was her reinstatement from the date of dismissal and the reconvening of the disciplinary inquiry. One of the considerations, in deciding whether to restore the employment relationship after a declaration that a dismissal is a nullity, is whether, on the evidence available, there had been a breakdown in the trust relationship (see Ramabulana v Pilansberg Platinum Mines (2015) 36 ILJ 2333 (LC), paragraph [55]).
  3. However, the primary reason Wereley sought an order of specific performance was to ensure that the disciplinary enquiry, which had been convened before an independent chairperson, was concluded before she could be dismissed on account of her alleged misconduct. At the time she was dismissed she had still been on suspension, so her reinstatement did not mean that weaknesses in the trust relationship between her and the employer would immediately be tested by her returning to work. Her only involvement with the employer until the enquiry was concluded and a decision made would be in the course of the inquiry proceedings. For this reason, the labour court did not think that the state of the trust relationship under existing circumstances was a weighty factor affecting its discretion to make an order of specific performance and it did not assume the same importance it might if she had not been on suspension.
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)?