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Article 28/2022

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

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In AMCU v Ngulu Bulk Carriers (Pty) Ltd (in liquidation) (2020) 31 SALLR 111 (CC); (2020) 41 ILJ 1837 (CC), the constitutional court adopted the following approach:

  • in National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd (2015) 36 ILJ 363 (CC); 2015 (2) BCLR 182 (CC, at paragraph [33], the constitutional court said:

‘And the Driveline minority’s approach to section 157(4) seems wrong to me. Section 157(4)(a) confers upon the labour court the power to refuse to determine a dispute if it is not satisfied that an attempt has been made to resolve the dispute through conciliation. Section 157(4)(b) then provides that a certificate issued by a commissioner that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation.  This means that, in a case where a certificate of non-resolution has been issued at the end of the conciliation process, the labour court may not, on the strength of section 157(4)(a), decline to determine the dispute.  This is because section 157(4)(b) says that the certificate is sufficient proof that an attempt was made.’

  • the flaw in the labour court’s reasoning stems from its characterisation of an automatically unfair dismissal as a dispute separate from an unfair dismissal dispute that was referred to conciliation.  That court overlooked the fundamental issue which is that what was referred to conciliation was the unfairness of the dismissal, regardless of whether the unfairness concerned was automatic or otherwise.  And that it is not reasons for a dismissal which must be referred to conciliation but the unfairness of the dismissal
  • in this regard, National Union of Metalworkers of SA v Driveline Technologies (Pty) Ltd and Another 2000 (4) SA 645 (LAC); (2000) 21 ILJ 142 (LAC); [2000] 1 BLLR 20 (LAC), at paragraphs [40] to [41], shows that a reason for a dismissal does not itself constitute a dispute.  In that matter the labour appeal court declared:

‘In my view, a reading of section 191(1)–(5) leaves one in no doubt that the phrase “operational requirements” as used in the Act does no more than give a reason for a dismissal the fairness of which may be in dispute between the parties as contemplated at the beginning of section 191(1) where the Act refers to “a dispute about the fairness of a dismissal”.  It does not itself constitute a dispute on its own.  The same applies to a situation where an employee alleges or seeks to allege that his dismissal constitutes an automatically unfair dismissal.  This refers simply to a reason for dismissal the fairness of which may be the subject of a dispute between the parties as contemplated in section 191(1) of the Act.

It follows, therefore, from what I have said above in regard to a dismissal for operational requirements that also the reference to a dismissal as an automatically unfair dismissal is nothing more than giving a reason for the dismissal.  That this is the case is confirmed by a reading of the provisions of section 187(1) which deal with automatically unfair dismissals.  It is clear from section 187(1) that whether a dismissal is automatically unfair depends on the reason for the dismissal.  Of course, once the reason for dismissal has been established, this may have various implications in terms of the Act which may differ from the implications which would flow from the establishment of another reason as the reason for dismissal.’

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)?