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Article 3/2025

Schedule 8 to the LRA contains substantive and procedural requirements applicable to misconduct and incapacity scenarios. What is the suggested approach to determine whether, when a workplace rule has been breached, specific items of Schedule 8 are applicable in determining whether there is compliance with such fairness requirements?

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SCENARIO 1

If the applicable workplace rule is breached in a manner that entails the existence of mens rea (intention or negligence on the part of the employee) and wrongfulness is present:

  • the breach amounts to misconduct
  • items 1 to 5 and 7 of Schedule 8 are applicable

SCENARIO 2

If the applicable workplace rule (in this scenario entailing that you are not permitted to participate in unprotected strike action or the collective withdrawal of labour) is breached in a manner that entails the existence of mens rea (intention or negligence on the part of the employee) and wrongfulness is present:

  • the breach amounts to misconduct
  • items 6 and 7 of Schedule 8 are applicable

SCENARIO 3

If the applicable workplace rule is breached in a manner that entails the absence of mens rea (the employee neither intentionally nor negligently breached the workplace rule) and wrongfulness is present and, furthermore, such breach is on the basis of the ill-health or injury of the employee:

  • the breach amounts to incapacity ill-health/injury
  • items 10 and 11 of Schedule 8 are applicable

SCENARIO 4

If the applicable workplace rule is breached in a manner that entails the absence of mens rea (i e the employee does not intentionally or negligently breach such rule) and wrongfulness is present and, furthermore, such breach is not on the basis of the ill-health/injury of the applicable employee:

  • then, by default, the breach amounts to incapacity poor work performance
  • items 8 and 9 of Schedule 8 are applicable

From the above, the following are, amongst others, evident:

  1. it is not the nature of the workplace rule that determines whether a misconduct or incapacity procedure and approach should be adopted;
  2. it is the manner in terms of which the workplace rule is breached (and not the upfront categorisation of such workplace rule) that determines whether a misconduct or incapacity approach should be adopted; and
  3. thus, the mere fact that a workplace rule is contained in a disciplinary code does not necessarily mean that a misconduct approach should be adopted – similarly, the mere fact that the workplace rule is contained in a performance policy, does not necessarily mean that an incapacity poor work performance approach must be adopted when there are breaches of such workplace rule.
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)?