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Article 26/2021

Labour Edge

The traditional approach adopted in determining whether or not an employee is guilty of the alleged offence is to determine, on a balance of probabilities, whether or not he or she is guilty of the offence he or she was charged with (including all the elements of such offence).  On what basis did the labour appeal court recently, in SA Police Service v Magwaxaza and Others (2019) 30 SALLR 42 (LAC), reject such approach?

The labour appeal court, per Coppin JA (Waglay JP and Kathree-Setiloane AJA concurring), adopted a contrary approach by indicating the following:

  1. there was merit in the argument made by the employer in casu that both the arbitrator and the labour court had adopted an unduly formalistic approach and had made the cardinal mistake of wrongly focusing the enquiry on whether it had been proven, on a balance of probabilities, that the employee was guilty of the alleged offence indicated in the charge sheet, as if it were a criminal trial;
  2. the true enquiry had to be about determining, in a manner which was not unduly formalistic, whether the employee’s dismissal had been fair, taking into account the allegations made against the employee and the standard of conduct required of him (Mashigo v SAPS [2018] 10 BLLR 943 (LAC), paragraphs [14]–[17]). The approach of the arbitrator, on its own, had constituted a gross irregularity that justified a review of the award;
  3. the arbitrator, in casu, had let the employee off, scot-free, once the employer was unable to prove that the employee was guilty of the misconduct as charged – this conclusion was clearly incongruous, unreasonable, and was due to the approach adopted by the arbitrator;
  4. it seemed implicit in the arbitrator’s reasoning that the fact that the charges had not (at least expressly) mentioned the crime of culpable homicide, but of murder, meant that the charge(s) against the employee had not been proved and, therefore, no sanction had been justified;
  5. this was not only unreasonable, but unjustified in light of the following. On the assumption that there had been a charge of murder, in disciplinary proceedings there is no requirement for competent verdicts to be mentioned in the charge sheet, and, in the absence of prejudice, an employee may be found guilty of the offence that is a competent verdict (EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 40 ILJ2477 (LAC); [2019] 12 BLLR 1304 (LAC); (2019) 30 SALLR 43 (LAC), paragraphs [16]–[17]); and
  6. In Mashigo, at paragraph [16], the labour appeal court referred, with approval, to what is stated in Woolworths v Commission for Conciliation Mediation and Arbitration and Others (2011) 32 ILJ 2455 (LAC), paragraph [32], namely, (quoting Le Roux and Van Niekerk The South African Law of Unfair Dismissal (Juta 1994) 102):

‘The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of the applicable rules or standards.’

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)?