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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)

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?