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Article 20/2024

LabourEdge

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC), what are the prescription principles applicable, firstly, to the dismissal of an employee and, secondly, to the award of the CCMA or the relevant bargaining council?

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  • It is submitted that the correct approach to be adopted to prescription is that as set out by the constitutional court in Food & Allied Workers Union obo Gaoshubelwe v Pieman’s Pantry (Pty) Ltd (2018) 39 ILJ 1213 (CC)
    • This approach has consistently been followed by the labour appeal court in, inter alia, National Union of Mineworkers obo Majebe v Civil & General Contractors CC (2021) 42 ILJ 1027 (LC), and the labour court (e g the Van Rensburg judgment (supra))
  • With reference to the aforesaid, the following relevant principles can be extracted:
    • the Prescription Act is applicable to all claims in terms of the LRA
    • a claim for reinstatement (with or without back pay), re-employment or compensation is a ‘debt’ as envisaged in the Prescription Act
    • a three-year period is applicable to such debt
    • the referral of an unfair dismissal claim or ‘unfair labour practice claim’ to the CCMA or the relevant bargaining council interrupts prescription and prescription remains interrupted until any review proceedings in relation to the process are finalised (including appeals) – a review and appeal in this regard is a ‘process’ ito s15(1) of the Prescription Act
    • the award in respect of which the claim is granted is also a debt in terms of the Prescription Act – it prescribes three years after being issued unless, once again, interrupted
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)?