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Article 15/2025

Under what circumstances may an employee be found to have breached a workplace standard or rule (the traditional finding of guilty) not mentioned in the original charge sheet (which should really be an investigation notification in terms of item 4 of Schedule 8 to the LRA)?
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  • The investigation (in terms of item 4 of Schedule 8 of the LRA) is not akin to a criminal trial where guilt is to be proven in respect of the ‘charge’ the employee faces.
  • As indicated in previous articles, the true enquiry is to determine whether or not the dismissal is fair, with relevance to the allegations against the employee and the standard of conduct required (Mashigo v SAPS [2018] 10 BLLR 943 (LAC)).
  • The approach is, therefore, that it is simply too formalistic to require guilt in respect of all the elements of the charge formulated by the employer.
  • It is, therefore, not surprising that the labour appeal court, in EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 30 SALLR 43 (LAC); (2019) 40 ILJ 2477 (LAC), found that the employee may be found guilty of a competent verdict (another charge not mentioned in the traditional charge sheet) – or, more appropriately, another workplace standard or rule not specifically mentioned in the investigation notification.
  • What is important is to appreciate the fact that a competent verdict (i e breach of a workplace standard or rule, traditionally referred to as a charge) is not required to be mentioned in the traditional charge sheet, nor is it a requirement that it must have been formulated in the charge sheet as an alternative charge (the above approach was also followed in SAPS v Magwaxaza and Others (2019) 30 SALLR 42 (LAC); (2020) 4 ILJ 408 (LAC)).
  • The above approach is, however, subject to various safeguards, including the following ones:
    • an employer ordinarily cannot change the allegation, or add new allegations, after the commencement of the enquiry if it is prejudicial to do so – Transport and General Workers Union and Another v Interstate Bus Lines (Pty) Ltd (1988) 9 ILJ 877 (IC); and
    • an employer may not adopt too formalistic or technical an approach, seeing that the categorisation by the employer is irrelevant when considering the true enquiry to be undertaken – Durban Confectionary Works t/a Beacon Sweets v Majangaza (1993) 14 ILJ 663 (LAC).
  • In conclusion, what needs to be answered is the following question: when will it not be prejudicial to find an employee guilty of a competent verdict not mentioned in the traditional charge sheet? Briefly, prejudice will be regarded as being present if:
    • the employee would have conducted his/her defence(s) differently, or
    • the employee would have had other defence(s) available to him/her. (S v Mwali 1992 (2) SACR 281 (A))
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)?