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Article 20/2026

Within what time period must a party or parties to a plant level collective agreement refer a dispute, concerning the interpretation or application of such plant level collective agreement, to the CCMA for resolution?

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  • The leading case in this regard is MEC for Health, KwaZulu-Natal v King (King) (Case No D2110/18).
  • At paragraph [48] of the King judgment, the following was stated:
    • with reference to Hospersa obo Tshambi v Department of Health, KZN [2016] 7 BLLR 649 (LAC), the court held that, despite s24 of the LRA not prescribing the period within which an interpretation or application dispute must be referred to the CCMA, such dispute must be referred within a reasonable time
    • so, what is reasonable? – s191(1) of the LRA provides the yardstick to test what is a reasonable time – the maximum period of 90 days to refer a dispute relating to unfair conduct on the part of the employer constitutes a reasonable time
    • if the dispute is referred outside such yardstick, an application for condonation must be made
    • to determine whether or not a dispute regarding the interpretation or application of a plant level collective agreement was referred within a reasonable time, the following factors must, inter alia, be considered:
      • the nature of the dispute referred
      • the history of the engagement between the parties on the subject matter of the dispute
      • the time elapsed in attempting to resolve the matter
      • the time it took the party who referred the dispute, with reference to the period after the parties ceased to engage regarding the dispute
    • in short, the whole period covering the dispute regarding the interpretation or application of the plant level agreement must be explained and accounted for

Concluding remarks

  • From the above, it is apparent that a reasonable time period is applicable within which a dispute regarding the interpretation or application of a plant level collective agreement must be referred to the CCMA.
  • And what happens if such reasonable time period has not been complied with – according to the King judgment (supra), an application for condonation must be brought. However, herein lies a further problem not dealt with in such judgment, namely, on what statutory provision can a commissioner of the CCMA rely when considering such an application for condonation?  In our view, there is currently no provision in the LRA granting the CCMA the jurisdiction to deal with such applications for condonation.
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)?