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Article 2/2022

Liability of an employer in terms of Compensation for Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’)?

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The facts of Churchill v Premier, Mpumalanga and Another (2021) 32 SALLR 27 (SCA) are briefly as follows: the employee worked at the Premier of Mpumalanga, employed as the chief director: policy and research.  Protest action regarding labour disputes, so organised by NEHAWU, had occurred at the premises and in the building where she worked.  She was assaulted and mistreated by the protestors and eventually evicted from the premises in a humiliating and degrading manner.  The employee claimed that the injuries were caused by the negligence of her employer not to take steps or, alternatively, took inadequate steps to ensure the safety of the employees in the workplace.  On the other hand, the employer raised a special plea claiming that the employees’ claim constituted an occupational injury making her entitled to compensation in terms of COIDA and, therefore, her claim is to be excluded in terms of section 35(1) of COIDA.

How did the supreme court of appeal deal with this issue?

  • in terms of s22(1) of COIDA, if an employee meets with an accident resulting in his disablement or death, such employee (or dependents) is entitled to benefits under COIDA
  • an accident is defined as meaning: ‘…an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee’
  • in MEC for Health, Free State v DN 2015 (1) SA 182 (SCA), it was held that there is no bright-line test to determine whether or not the accident arose out of and in the course of an employee’s employment and each case must be dealt with on its own merits – in this matter, a rape perpetrated by an outsider on a doctor on duty at a hospital was found not to arise out of the doctor’s employment because the risk of rape is not incidental to such employment
  • in the aforesaid matter, the SCA held that the employee’s employment brought her within the zone of hazard, giving rise to her injuries – however, the risk of rape was not incidental to her employment
  • on the basis of the above approach, the SCA in casu concluded that the closer the link between the injury sustained and performance of the ordinary duties of an employee, the more likely it is that it can be said that they were sustained arising out of and in the course of employment – on the basis of this approach, the SCA in casu found that the protest action turning violent and resulting in assaults are not risks incidental to employment and, therefore, do not arise out of and occur in the course of employment.  This meant that the employee’s claim was not covered by COIDA and she was entitled to institute a civil claim, based on delict, against her employer.
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)?