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Article 18/2024

LabourEdge

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.  Is this the correct approach or, alternatively, should such claim be determined during a trial?

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  • In Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA), it was held that, in motion proceedings:
    • ‘‘[16] … The continued existence of the common-law right of employees to be fully compensated for the damages they can prove they have suffered by reason of an unlawful premature termination by their employers of fixed term contracts of employment is not in conflict with the spirit, purport and objects of the Bill of Rights and it is appropriate to invoke the presumption in the present case’ (see also Black and Others v Joseph 1931 AD 132, at 150).
  • In similar vein, in Erasmus v Davis 1969 (2) SA 1 (A), it was held that, when claiming damages, the best evidence available to substantiate a claim for damages must be produced to enable an accurate assessment of same – when an employee fails to produce available evidence for the proper assessment of loss, the court cannot embark on awarding an arbitrary approximation of damages.
  • Taking the above into account, it is apparent that, in the civil courts, a claim for unliquidated damages for breach of contract by means of application proceedings is not permissible – Roy Greyling v George Randell High School (2023) 34 SALLR 82 (LC); [2023] 5 BLLR 412 (LC).
  • Thus, in the civil courts, unless damages have been liquidated by agreement or by a court, they are unliquidated damages to be determined by means of trial proceedings (Kleynhans v Van der Westhuizen NO 1970 (2) SA 742 (A).  Despite the above, it is apparent that the labour and labour appeal courts follow a different approach and award damages in the above regard in motion proceedings – e g KwaZulu-Natal Tourism Authority v Wasa [2016] 11 BLLR 1135 (LAC) and South African Football Association v Mangope (2013) 34 ILJ 311 (LAC).
  • With reference to the George Randell High School judgment, it is submitted that the approach of the supreme court of appeal should prevail over the approach of the labour appeal court and that the labour appeal court (as well as the labour court) should refer the issue of the quantum of damages to trial, seeing that, inter alia:
    • the calculation of contractual damages is never a mere arithmetic approach – it is indeed a value judgment in the computation of such quantum
    • reasonable efforts to mitigate the damages exist and must be canvassed during the trial
    • the amount of damages cannot be determined until the debate has been exhausted before a court hearing evidence
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)?