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Article 21/2023

What is the quantum of damages suffered by an employee in all cases of the unlawful termination of a contract, including:

  • short notice
  • defective notice
  • giving no notice at all

or some other breach of contract giving rise to an election to terminate?

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  • Unlike in the case of an unfair dismissal, in the case of exercising a contractual right to terminate an employment contract, the reasons or motives for exercising such right are normally irrelevant

(Mutsapha v Receiver of Revenue 1958 (3) SA 343 (A))

  • Where an employer reserves for itself the right to terminate an employment contract, the only potential actionable wrong is the failure to pay the requisite notice or permit the employee to work during such notice period – damages in this regard are limited to what the employee would have earned during the notice period

(Harper v Morgan Guarantee Trust 2004 (3) SA 353 (W), so referred to recently in Khan v MMI                        Holdings (2021) 32 SALLR 44 (LC))

  • The limited damages rule is applicable to all cases of unlawful termination, including short notice, defective notice, no notice given at all, or some other breach of contract giving rise to an election to terminate

(National Entitled Workers Union v CCMA (2007) 28 ILJ 1223 (LAC)

  • In summary, therefore, if an employer lawfully terminates an employment contract (i e giving proper notice or having paid in lieu of such notice, the employee has no further claim for contractual damages)
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)?