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Article 2/2026

LabourEdge

The Code of Good Practice: Dismissal (the Code) in item 12 deals with dismissals and industrial action.

The principles established in, amongst others, item 6(1) of the repealed Schedule 8 are repeated in item 12(1) of the Code and, in essence, amount to the following:

  • participation in a strike (as well as the collective withdrawal of labour) that does not comply with the provisions of Chapter IV is misconduct
  • the substantive fairness of a dismissal in these circumstances must be determined with reference to the facts of each case and include the following:
    • the seriousness of the contravention of the LRA
    • attempts made to comply with the LRA
    • a determination as to whether the strike was in response to unlawful, unfair or unreasonable conduct by the employer

What are the factors relevant to assessing the seriousness of the contravention of the LRA in the above regard? 

What are the procedural fairness requirements to be complied with before a dismissal is implemented?

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The following factors are relevant to assessing the seriousness of the contravention of the requirements of the LRA (with reference to item 12(2) of the Code – these factors were not part of the repealed Schedule 8, but some references to these factors are found in the content of s68 of the LRA):

  • the conduct of the parties to the dispute related to the industrial action
  • the conduct of any other person that has a bearing on the seriousness of the contravention
  • the legitimacy of the strikers’ demands
  • the duration and timing of the strike
  • the harm caused by the strike

The procedural fairness requirements relating to the scenario where employees embark on unprotected strike action or the collective withdrawal of labour, as set out in item 12(3) of the Code, corresponds largely to the content of the repealed s6(2) of Schedule 8, as well as the relevant case law, and amounts to the following:

  • the employer, at the earliest opportunity, must contact a trade union official to inform the trade union about the strike, so as to create an opportunity to consult with the striking employees
  • the employer should consider representations by the said official and discuss, with the trade union, the course of action it intends to adopt
  • if there is no trade union involved, then the employer is to engage with the leaders/ representatives of the striking employees
  • the employer is to issue a clear and unambiguous ultimatum, setting out what is required of the striking employees and what the sanction will be in the case of non-compliance
  • the employees must be allowed sufficient time to reflect on the ultimatum and to respond to it (either complying or rejecting it)
  • if the ultimatum is issued to employees participating in an unprotected strike and the employees obey and return to work within the required time period, it may be unfair to dismiss the employees for participation in the strike
  • if the employees reject the ultimatum, the employer may dismiss them:
    • after considering their conduct
    • after considering representations received from the employees ito the Code
  • in the case of collective misconduct, depending on the circumstances, the employer may be entitled to call for collective representation
  • if the employer cannot reasonably be expected to extend any of the above procedural steps, the employer may dispense with them
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)?