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Article 21/2025

The constitutional court, recently, in Regenesys Management (Pty) Ltd t/a Regenesys v Illungo (2024) 35 SALLR 113 (CC), had the opportunity to, once again, look at this scenario and, in doing so, placed the following principles under the spotlight:
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  • it is an acceptable approach that, when restructuring takes place, an employer is entitled to propose a change of the current organisational structure by proposing the adjustment and streamlining of roles and positions – such altered job functions are to be evaluated in terms of s189 and s189A
  • when an employee is dislocated from a current job in a current organigram and is required to participate in a placement process regarding a new job or jobs in a new organigram, it is not unfair to require such employee to apply for such jobs and to participate in the placement process
  • placement criteria for the new job may entail the following:
    • qualifications and experience
    • qualification and potential
    • LIFO
  • in Pratten v Afrisun (2020) 31 SALLR 159 (LC), a similar approach was followed, but the employer regarded the placement criteria as related to technical competencies (e g can the employee drive the bus) and behavioural competencies (e g should the employee be a bus driver) – within this environment, the LC recognised, in respect of behavioural competencies, the utilisation of psychometric testing
  • when an employee competes in the placement process, such criteria are not selection criteria in terms of s189(2)(b) or s189(7) of the LRA
  • Regenesys (CC) makes it clear, like Pratten (supra), that, if an employee does not make it in the placement process, and stays dislocated, the subsequent fairness of his/her dismissal still needs to be established in terms of the normal selection criteria applicable to dismissals for operational requirements

See, further, Telkom SA Soc Ltd v Van Staden (2021) 32 SALLR 8 (LAC); (2021) 42 ILJ 869 (LAC) and SA Breweries (Pty) Ltd v Louw (2017) 28 SALLR 71 (LAC)

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)?