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Article 30/2021

Labour Edge

On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that, when an unfair dismissal dispute is pursued, it does not mean, by implication, that a challenge of an earlier final written warning may be pursued as part of such unfair dismissal dispute?

The labour court recently, in De Kock, approached this issue as follows:

  1. the clear difference in the nature of the dispute, where it comes to an unfair dismissal dispute and an unfair labour practice dispute, has a consequence. This consequence is that each has its own distinct dispute resolution process. It follows that an unfair dismissal dispute must be pursued as such, and an unfair labour practice dispute must also be pursued as such. It cannot be legitimately contended that, when an unfair dismissal dispute is pursued by way of a referral to the CCMA, it would also, by implication, include a challenge of an earlier final written warning, even if that final written warning may have a bearing on the dismissal. The final written warning must be specifically challenged as an unfair labour practice. This must be done by a proper referral to conciliation served on the employer, following an unsuccessful conciliation at the CCMA;
  2. in National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC); [2015] 2 BCLR 182 (CC), at paragraph [47], the constitutional court said:

‘In determining the objectives of s191, none of its provisions can be ignored. They must all be taken into account. That includes the requirement in s 191(3) that the employee must satisfy the council that a copy of the referral has been served ‘on the employer’. The general purpose of s191 provides the background against which the specific purpose of s191(3) must be understood. The subsection ensures that the employer party to a dismissal or unfair labour practice dispute is informed of the referral. The obvious objective is to enable the employer to participate in the conciliation proceedings, and, if they fail, to gird itself for the conflict that may follow’ (see also Mphahlele v Ephraim Mogale Municipality (2018) 39 ILJ 879 (LC), at paragraph [8]); and

  1. in the absence of a final written warning being challenged as an unfair labour practice, it simply cannot be challenged in the course of subsequent unfair dismissal proceedings. Even under the former LRA (Act 28 of 1956), the erstwhile industrial court recognised the necessity to distinguish between the challenge of a final written warning and a dismissal, and accepted that a final written warning cannot be challenged in subsequent litigation if it had not been specifically challenged earlier.
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)?