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Article 20/2023

What is the effect of the BCEA Amendment Act 2018 on the dispute-resolution path for monies owed in terms of the National Minimum Wage Act, a contract of employment, sectoral determination or collective agreement?

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Scenario 1: if the employee or worker earns above the threshold, so established in terms of s6(3) of the BCEA (currently R224 080.48)

  • in such instance, the employee or worker has various alternative dispute avenues, namely, the labour court, or the high court, or the magistrates’ court, or the small claims court

Scenario 2: if the employee earns below the aforesaid threshold

  • in such instance, the only dispute-resolution threshold is compulsory con-arb – this, amongst other things, entails that, before such amendment to s73A of the BCEA, if monies were owed to the employee or worker in terms of a contract of employment, he or she was obliged to recover such monies by following a civil litigation path, whereas, now, compulsory con-arb is the prescribed avenue
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)?