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Article 2/2023

An employee suffered severe injuries, whilst on duty and working on a machine. It is common cause that the employee’s injuries were caused by the negligence of senior management whilst under the influence of alcohol.

What are the principles applicable when injuries at work are caused by the negligence of senior management as opposed to when same are caused by a co-employee or third party?

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In Clementz v Millbo Paper CC and Others (2021) 32 SALLR 35 (GJ), Gilbert AJ followed, so it is
submitted, the following correct approach:

  • in terms of s35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993
    (‘COIDA’), an employee, or any dependent of such employee, is not entitled to damages in
    respect of an injury or disease against the employee’s employer and the employer is not liable in
    this regard, save to the extent as set out under COIDA
  • in terms of s35(2) of COIDA, for the purposes of s35(1), the following shall be deemed to be an
    employer:

    • an employee managing a business, in control of a business or any branch or department
      thereof
    • an employee who has the right to engage or discharge employees on behalf of the employer
    • an engineer appointed to be in charge of machinery or a person appointed to assist such
      engineer in terms of the Minerals Act
    • a person appointed to be in charge of machinery in respect of regulation in terms of the
      Occupational Health and Safety Act
  • when negligence is caused by the employer (including the senior management referred to
    above), and if COIDA is applicable, this would lead to increased compensation
  • however, on the other hand, if a co-employee caused the said injury (or a third party), then, in
    terms of s36 of COIDA:

    • the employee may claim compensation ito COIDA and may also institute action for damages
      against the third party and
    • the compensation commissioner or employer, by whom compensation is payable, may
      institute action against the third party for recovery of compensation that he is obliged to pay
      in terms of COIDA

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)?