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Article 27/2023

What are the potential remedies should a dismissal be substantively or substantively and procedurally unfair?

Is there a difference between such remedies if the dismissal is for misconduct or incapacity, as
opposed to operational requirements or automatically unfair dismissals?

What is the potential relief if the dismissal is only substantively unfair?

What was the approach adopted by the constitutional court?

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The labour appeal court, in SA Teachers Union obo Kruger v Gauteng Department of Education (2021) 32 SALLR 12 (LAC); (2021) 42 ILJ 827 (LAC), identified the following scenarios:

Scenario 1: the dismissal on the basis of misconduct or incapacity is substantively or substantively and procedurally unfair

  • the primary relief is reinstatement or re-employment, entailing:
    • the resumption of employment on the same terms and conditions as at the date of dismissal
    • the arbitrator has a discretion in respect of retrospectivity, with the limitation that it cannot be
      fixed earlier than the actual date of dismissal

(Equity Aviation Services v CCMA 2009 (1) SA 390 (CC), SACCAWU v Woolworths (2019) 40 ILJ 87 (CC), Sibiya v SAPS (2022) 33 SALLR 28 (LAC))

  • the alternative remedy is compensation

Scenario 2: the dismissal is on the basis of operational requirements or being automatically unfair and is found to be substantively or substantively and procedurally unfair

  • what is stated above under scenario 1 is equally applicable here, mutatis mutandis
  • however, in terms of s193(3) of the LRA, in addition, any other order considered to be
    appropriate may be made

Scenario 3: the dismissal is for misconduct, incapacity, operational requirements or being
automatically unfair, but is procedurally only branded as unfair

  • in terms of s193(2)(d) of the LRA, no reinstatement or re-employment is appropriate, but only
    compensation
  • the only exception to the above is s189A(13) of the LRA, where reinstatement may be ordered to
    ensure a procedurally fair operational requirements dismissal in terms of s189A of the LRA
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)?