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Article 13/2025

In the preceding articles, we have dealt with the reasonable decision-maker test introduced by Sidumo v Rustenburg Platinum Mines Ltd the CCMA and Moropa NO
(2008) 19 SALLR 35 (CC).

But, there is also another test to be applied in review proceedings. The aim of this article is to highlight the approach to be adopted to determine which test is to be applied on review.
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  1. In essence, the dispute to be resolved determines the test to be applied. (Jonsson Uniform Solutions (Pty) Ltd v Brown and Others (DA10/2012)
    (13 February 2014)
  2. If legal or jurisdictional findings are challenged, the reasonable decision-maker test is not to be applied, but the correctness test is to be applied, so formulated in, inter alia, SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others [2008] 9 BLLR 845 (LAC).
  3. If the factual findings of the arbitrator are challenged on review, then the reasonable decision-maker test, as formulated in the Sidumo judgment, is to be applied.
  4. On the other hand, if, on review, the legal or jurisdictional issues are inextricably linked to the factual findings, then the reasonable decision-maker test, as formulated in the Sidumo judgment, is to be applied.

See, further, Pikitup Johannesburg (Soc) Ltd v Muguto and Others (2019) 30 SALLR 186 (LC).

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)?