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Article 24/2025

In Enever v Barloworld Equipment (2024) 35 SALLR 115 (LAC), the employee claimed, amongst others, being unfairly discriminated against by her employer on the grounds of being tested positive for the use of cannabis, used for non-medicinal purposes. With reference to Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC) and the principles of such case applied by the constitutional court in Mbana v Shepstone & Wylie (2015) 36 ILJ 1805 (CC), what approach did the labour appeal court follow when applying s11 of the EEA?

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IF THE ALLEGED DISCRIMINATION EXISTS ON A LISTED GROUND

  • The presumption is that the discrimination is unfair.
  • The onus is on the employer to prove either of the following:
    • the discrimination did not take place as alleged, or
    • the discrimination is rational/not unfair/otherwise justifiable

IF DISCRIMINATION IS ALLEGED ON AN ARBITRARY GROUND (i e A NON- LISTED GROUND)

  • The onus is on the employee to prove:
    • the conduct complained of is irrational
    • the conduct complained of amounts to discrimination
    • such discrimination is unfair
  • A non-listed ground must ‘smell, taste and feel’ like a listed ground and the test being the following: whether it impacts human dignity or affects humans adversely in a comparably serious manner as the listed grounds.

See, further, Naidoo v Parliament of the Republic of South Africa (2020) 41 ILJ 1931 (LAC)

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?