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Article 27/2024

LabourEdge

Subsequent to FA v University of Witwatersrand (2023) 44 ILJ 929 (CCMA), Standard Bank of South Africa v Zimbini Makuleni (JR2261/18), Makuleni v Standard Bank of SA Ltd (2023) 34 SALLR 71 (LAC), Centre for Autism Research and Education CC v CCMA and Others (2020) 41 ILJ 2623 (LC) and Gaga v Anglo Platinum Ltd and Others (2012) 33 ILJ 329 (LAC), it is possible to identify various types of workplace bullying.

What are some of the important principles applicable when considering workplace bullying?

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  • In the Standard Bank judgment (LC), Boda AJ indicated that workplace bullying is linked to a feeling of incompetence in handling a job, a sense of alienation from colleagues, anxiety that there will be no promotional recognition, a challenge to job security, feelings of inadequacy and the knock-on tensions in personal relationships – not even to mention depression.
  • With reference to the work done by Professor Alan Rycroft, Boda AJ provided the suggested definition of workplace bullying to include any unfavourable or offensive conduct on the part of a person or persons which has the effect of creating a hostile working environment.
  • Specific behaviours identified to constitute workplace bullying include the following: various forms of persecution, threats and inspiration of fear, degradation, deliberate insults, hypercritical negative responses or attitudes and offensive administrative penal sanctions (directed against an employee without any objective cause, explanations or efforts at resolving any underlying problems).
  • Distinction is to be made between direct/overt bullying when compared to indirect/covert bullying – the latter is subtler and aimed at harming people on an emotional level with the intention to inflict pain in a manner that can be denied at a later stage.
  • A serious form of workplace bullying is gaslighting – these are actions taken by the perpetrator to cause the victim to question him/herself and make the victim doubt his/her competence.
  • A specific type of bullying is gender bullying, distinguishable from the aforesaid general bullying, seeing that this occurs on gender lines – equally, bullying can also take place according to race, etc (i e constituting racial bullying, etc).
  • As a general rule, the sanction of dismissal is applicable, specifically if the offender denies the bullying and showed no remorse.
  • Apart from the aforesaid cases, SALLR delegates are required to have recourse to the CCMA information sheet on harassment, as well as the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace.
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)?