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Article 22/2025

With reference to Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC), National Health Laboratory Services v Yona and Others (2015) 36 ILJ 2259 (LAC) and Jordaan v CCMA and Others (2010) 31 ILJ 2331 (LAC), what is the content of the two-stage approach applicable to constructive dismissals, so recently confirmed by the labour appeal court in Sanlam Life Insurance v Mogomatsi and Others (2023) 34 SALLR (LAC)?

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STAGE 1

  • The employee must prove that the employer effectively dismissed him/her by making the continued relationship intolerable.
  • If an employee resigns because work has become intolerable, this does not amount to a constructive dismissal – the requirement is that the intolerability must be of the employer’s doing.
  • But, even if an employer is responsible for the relationship being intolerable, it may not be blamed – more is required.
  • The employer must be culpably responsible for the intolerability – the conduct of the employer must lack reasonable and proper cause.
  • Viewed objectively, it could not be reasonably expected of the employee to continue with the employment relationship.

STAGE 2

  • After a constructive dismissal is established in terms of stage 1, an evaluation at this stage is to take place as to whether or not the dismissal was unfair.
  • It is to be noted that these two stages might overlap and be interrelated.
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)?