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Article 16/2022

In Pratten v Afrisun KN (Pty) Ltd (2020) 31 SALLR 159 (LC), the employer, following consultations, decided to day away with a number of existing positions within its organisational structure and to introduce a number of new positions.  Pursuant to the new positions being filled, some employees found themselves likely to be without a job, and thus at risk of being retrenched, absent other alternatives.

What are the principles identified by the labour appeal court, in South African Breweries v Louw (2017) 28 SALLR 71 (LAC); (2018) 39 ILJ 189 (LAC), so recently applied by the labour court in the Pratten matter and applicable to the above scenario?

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  1. typically, retrenchments result from one of two reasons, namely:
  • a need to cut costs by reducing staff, i.e. the very objective is to dismiss some staff and a decision has been made which post will be declared redundant or, alternatively, which incumbents will be reduced (this scenario intrinsically envisages job losses)
  • the other main reason that results in retrenchments is the restructuring of the business to achieve aims related to efficiency and the like: some existing posts are no longer required because either the need falls away or the functions are distributed amongst existing or new posts or subsumed into fewer functional broader posts: the result is the dislocation of incumbents of such affected posts
  1. an incumbent of a redundant post (with referenced to the second reason for retrenchment as set out above) is not automatically dismissed: the person is merely dislocated and, only after opportunities to relocate that person into another suitable post have been explored and exhausted may he or she be fairly dismissed;
  2. what has inappropriately been labelled as ‘selection criteria’ is the inclusion of past performance ratings in the assessment process for a competitive process to select a new incumbent.  This is not a method to select employees to be dismissed and not regulated by s189(2)(b) of the LRA.  Equally so, in the Pratten matter, it was inappropriate to label as selection criteria the utilisation of psychometric testing in the competitive process to select a new incumbent;
  3. a dislocated employee, who applies for a new post and fails, and by reason thereof remains at the risk of dismissal, if other opportunities do not exist, does not convert the assessment criteria for competition for that post into selection criteria for dismissal;
  4. this is the case notwithstanding that, broadly speaking, it is possible to perceive the assessment process for the new post as part of a long, logical, causal chain, ultimately ending in dismissal;
  5. it is contrived to allege that the taking into account of performance ratings (in the case of Louw) and psychometric testing (in the case of Pratten) in a process of recruitment for a post is the utilisation of a method for selection for dismissal as contemplated in s189(2)(b) and s189(7) of the LRA;
  6. an employer who seeks to avoid dismissal for a dislocated employee and who invites the dislocated employee to compete for new posts therefore does not act unfairly and does not transgress s189(2)(b) or s189(7) of the LRA – being required to compete for such a post is not a method for selecting an employee for dismissal, but rather it is a legitimate method for seeking to avoid the need to dismiss a dislocated employee; and
  7. intrinsically, a competitive process for appointment makes assessments of the relative strengths and weaknesses of a candidate (and, obviously, such principle is equally applicable in respect of psychometric assessments utilised to evaluate the competitiveness of applicants for new jobs)
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)?