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Article 14/2021

Labour Edge

It is settled law that an arbitrator of the CCMA or a bargaining council may peal away the husk of allegations and deal with the real dispute.  On what basis did the labour appeal court, in  Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), recently find that the same approach is not applicable when a contractual dispute is referred to the labour court?

  1. Having invoked the LRA as the source of the claim to declare the agreement void, what right in terms of the LRA could be invoked to sustain that claim? The founding affidavit did not reveal an answer. If the appellant had meant to complain that the retrenchment was unfair, relying on the provisions of s189 not having been observed, it would first have had to refer a dispute to the CCMA for conciliation. However, that cause of action was not invoked. The case was not about an unfair retrenchment.
  2. Had the appellant meant to lodge a claim in contract in respect of which the labour court, in terms of s77(3) of the Basic Conditions of Employment 75 of 1997 (‘the BCEA’), could exercise civil jurisdiction? No express invocation of that power was made either.
  3. The labour court, without expressly saying so, had treated the case as a contractual dispute. By so doing, in the labour appeal court’s view, it had been generous, for otherwise the application should have been dismissed out of hand for incoherence.
  4. The incoherence was patent. Several questions arose. In the absence of expressly alleging that the labour court had to exercise civil jurisdiction pursuant to s77(3), could the labour court properly do so? Is it appropriate for the labour court to peel away the husk of the allegations and deal with the real dispute, as is required of commissioners of the CCMA? Can such an approach be competent where, unlike in the CCMA, the parties before the labour court are required to plead? More especially, if s158(1)(a)(iv) was expressly alleged as the competence of the labour court which was invoked, was it appropriate or even competent to have treated this matter as a civil claim?
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)?