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Article 29/2023

The labour appeal court recently, in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC), reiterated some very important principles governing the peremptory nature of the relief of reinstatement or reemployment.

In the light of the above, what approach should be adopted by the labour court or the arbitrator when considering such relief?

It is not always properly understood that reinstatement or re-employment is the peremptory relief should a dismissal be found to be substantively or substantively and procedurally unfair unless s193(2)(a) to s193(2)(d) is obviously applicable. With reference to the approach of the constitutional court in, inter alia, Equity Aviation Services v CCMA 2009 (1) SA 390 (CC) and Billiton Aluminium v Khanyale (2010) 31 ILJ 273 (CC), how did the labour appeal court recently, in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC), deal with the obligations of an arbitrator or a judge of the labour court to probe any factors relevant as exceptions to the relief of reinstatement or re-employment?

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In Mthethwa, the following approach was adopted:

  • the word ‘must’ in s193(2), indicating the relief of reinstatement or re-employment, is peremptory
  • this entails, inter alia, that the labour court, or the arbitrator, is obliged to reinstate or re-employ (if
    indeed a decision is made that the employee is entitled to relief), unless s193(2)(a) to s193(2)(d)
    is applicable

(SAMWU v Ethekweni Municipality [2019] 1 BLLR 46 (LAC))

  • in simple terms, once substantive unfairness has been established, it is peremptory or obligatory
    to reinstate, unless the above statutory exceptions exist – the labour court, or the arbitrator, is,
    therefore, obliged to probe any factor relevant to such exceptions

(DHL v National Bargaining Council for the Road Freight Industry [2014] 9 BLLR 860 (LAC))

In applying the aforesaid principles to the facts of the case, the labour appeal court held, in Mthethwa, that the basis upon which reinstatement or re-employment did not take place, namely, that employment for the employee would be unsafe taking into account the physical security of the employee, amounted to subjective thinking and clearly constitutes an irregularity

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)?