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Article 15/2023

What are the factors to be taken into account to determine whether misconduct committed outside the workplace, not in execution of duties and outside working hours, including the use of social media, could be addressed by an employer and be subject to disciplinary procedures?

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  • The first issue to be appreciated is to understand that dealing with misconduct outside the
    workplace, when not in execution of duties and outside of working hours, entails a standard of
    ethical conduct to be observed that is so obvious that employees need not be reminded of same
    in any disciplinary code, e g it is obvious to everyone that racial comments cannot be made on
    Facebook outside the workplace and outside working hours

(Tibbett and Britten v Marks (2005) 26 ILJ 940 (LC))

  • Secondly, it is important to also appreciate that disciplinary action can only be taken if a sufficient nexus or bearing on the employment relationship has been established

(Biggar v City of Johannesburg (2017) 38 ILJ 1806 (LC))

  • Thirdly, it is important to also appreciate that the existence or otherwise of such sufficient nexus
    entails a multi-faceted enquiry with reference to, inter alia, the following factors:

    • the size of the employer
    • the nature and size of the workforce
    • the nature of the work performed by the employer and the relevant employee
    • the capacity of the employee to do the job
    • the position of the employer in the marketplace and profile
    • the relationship between the employee and the victim
    • the impact of the misconduct on the workforce
    • the relationship between the employer and the employee

(Hoechst v CWIU (1993) 14 ILJ 1449 (LAC), Edcon v Cantamessa [2020] 2 BLLR 186 (LC),
Makhoba v CCMA (2022) 33 SALLR 10 (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)?