Skip to main content

Article 29/2024

LabourEdge

The Code of Good Practice: Dismissal (Schedule 8 of the LRA) does not contemplate a criminal justice model incorporating formal charge sheets, formal procedures for leading and cross-examination of witnesses, formal rules of evidence and legal representation (see, inter alia, Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 10 SALLR 118 (LC); (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC)).

_____________________________________

The CCMA recently, in FA v University of Witwatersrand (2023) 44 ILJ 929 (CCMA), as well as the labour court recently, in Mulaudzi v Property Practitioners Regulatory Authority (2023) 34 SALLR 77 (LC), indicated, once again, the difference between the 1956 LRA and the 1995 LRA, as follows:

1956 LRA

  • Under this Act, a criminal justice model was adopted, when the industrial court determined whether a dismissal constituted an unfair labour practice or not.
  • Consequently, in this environment, a formal disciplinary enquiry approach was adopted at the workplace, entailing, inter alia, the following:
    • the putting of a charge
    • the pleading to such charge
    • the leading of evidence-in-chief, cross-examination and re-examination
    • the taking into account of aggravating and mitigating factors, etc

1995 LRA

  • On the other hand, in the current unfair dismissal environment, elaborate procedural requirements at the workplace are inappropriate.
  • The following are the only elements of the statutory fairness required pertaining to dealing with misconduct at the workplace:
    • an investigation is to take place into the allegations
    • the employee is to be afforded an opportunity to respond
    • the employee has available the assistance of a representative
    • the employer must make a decision as to the outcome of the investigation
    • the employee is to be notified of such decision as well as notified of his/her right to refer the dispute for dispute resolution at an external body (i e CCMA, relevant bargaining council or procedure in terms of a collective agreement)
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)?