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Article 16/2021

Labour Edge

In the scenario where an employee alleges that, as a result of a misrepresentation by his or her employer, a termination agreement was concluded, why, according to the labour appeal court in Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), would it be the wrong approach to seek a declarator that the agreement is void and what should be the correct approach?

  1. Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC) held that, ordinarily, when pleading that sort of case in a contractual dispute, such a contention would be the foundation for a cancellation of the agreement and a tender of the return of any performance received by the aggrieved party in order to re-establish the status quo ante. This would typically be an action for restitutio in integrum (see L A Lambiris, Orders of Specific Performance and Restitutio in Integrum in South African Law (1989) Butterworths, Durban, page 182. The remedy is an exercise of equitable jurisdiction. It has three elements: A justa causa, sustaining of material damage and may require restoration of benefits received).
  2. This is not how the appellant chose to articulate his claim. He sought a declarator that the agreement was void. He did not allege that he had elected to resile for good cause. He did not unequivocally tender a return of the respondent’s performance. That performance was the payment of money. The appellant did not allege that it had been impossible to repay the sums, though he alluded to a set-off of future receipts of salary upon reinstatement of his employment, a tender that had, therefore, to be contingent on an order of specific performance of the initial employment contract, a remedy which was itself discretionary (Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)). Indeed, none of the ordinary language of a contractual cause of action was evident. The labour court noted the omission to properly tender a return of performance and, in consequence, held that the appellant’s case fell on that ground alone. Because of the view the labour appeal court took of the matter, it was unnecessary to make definitive findings on this aspect of the case. The case was decided on the misrepresentation question, the true dispute between the parties.

 

 

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)?