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Article 22/2022

What is the difference between contractual, statutory and collective agreement rights and obligations?

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Statutory rights and obligations

  1. these types of disputes are created by statute and concern an alleged statutory unfair dismissal or an alleged statutory unfair labour practice;
  2. the employee is entitled to claim reinstatement, re-employment or compensation;
  3. the CCMA and labour court have jurisdiction to determine these disputes concerning the unfair conduct of an employer in terms of, inter alia, s193, s194 and s195 of the LRA

Contractual rights and obligations

  1. these disputes concern the alleged breach of a contract, excluding a collective agreement;
  2. the claimant’s claim is for damages, compensation or specific performance;
  3. the labour court and high court have concurrent jurisdiction in terms of s77(3) and s77A(e) of the BCEA;
  4. the claimant targets the unlawful conduct of the respondent and, if indeed it is a dismissal matter, a declaration that same is unlawful and ab initio void;

Collective agreement

  1. here the cause of action is the breach of such agreement and the remedy is set out in s24 of the LRA;
  2. s77(3) and s77A(e) of the BCEA are not applicable.
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)?