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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)

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)?