Skip to main content

Article 23/2025

The test for discrimination is well-established and set out in Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (Harksen).

In Mbana v Shepstone & Wylie 2015 (6) BCLR 693 (CC) (Mbana), in considering Harksen, the constitutional court said that ‘[a]part from permitting differentiation on the basis of the internal requirements of a job … the test for unfair discrimination in the context of labour law is comparable to that laid down by the constitutional court in Harksen’.

What does this test entail so applicable to automatically unfair dismissals (ito s187(1)(f) of the LRA) and unfair discrimination (ito s6(1) of the EEA), as more recently applied by the labour appeal court in Enever v Barloworld Equipment South Africa (a division of Barloworld South Africa) (Pty) Ltd (2024) 35 SALLR 115 (LAC)?

_____________________________________

STEP 1

Did the act or omission differentiate between people or categories of people?

  • if there is no differentiation, there is also no discrimination
  • however, if there is differentiation, then the next step entails answering the question as to whether or not such differentiation amounts to discrimination

STEP 2

Does the differentiation amount to discrimination?

  • if the differentiation is on a listed ground, then discrimination has been established
  • if the differentiation is on a non-listed ground, then the claimant must prove that such differentiation is based on attributes and characteristics with the potential to impair human dignity, or affect humans adversely in a comparably serious manner to listed grounds
  • if the claimant cannot prove that the ground of differentiation has the characteristic with the potential to impair human dignity, or adversely affect human beings in a comparably serious manner to the listed grounds, then no discrimination has been established – on the other hand, if the requirements of the impairment of human dignity, or to affect adversely in a comparably serious manner to a listed ground, have been complied with, then what remains to be asked is whether or not such discrimination amounts to unfair discrimination

STEP 3

Is the discrimination unfair?

  • if the discrimination is on a listed ground, the presumption is that it is unfair unless the employer can prove fairness
  • if the discrimination is on a non-listed ground, unfairness must be established by the complainant – the test entails a determination of the impact of the discrimination on the complainant and others in similar positions
  • if there is compliance with the aforesaid test, unfair discrimination has been established – if there is non-compliance with the aforesaid test, the discrimination is fair
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?