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Article 30/2023

In Booi v Amathole District Municipality (2022) 32 SALLR 51 (CC), the constitutional court specifically dealt with the statutory exceptions to reinstatement or re-employment as a primary remedy.

What are the important principles that practitioners are to be aware of when considering the content of s193(2)(b) of the LRA, namely, that the continued relationship is made intolerable?

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In Booi, the constitutional court indicated, inter alia, the following:

  • even if the statutory exceptions, namely, that the continued relationship is intolerable or that it is
    not reasonably practicable to reinstate or re-employ, were not raised in pleadings or even if no
    specific evidence was led in this regard, such factor must be considered by the labour court or
    the arbitrator

(see, further, Mediterranean Textile Mills v SACTWU (2012) 33 ILJ 160 (LAC))

  • as previously indicated, in article 26/2023, there is no automatic right to a remedy and this is equally applicable to compensation as well as reinstatement

(see, further, Toyota v CCMA 2016 (3) BCLR 374 (CC))

  • the aforesaid statutory defences must be considered, even if the employee is found not guilty of
    the alleged offence
  • also, the aforesaid statutory defences must be considered, even if peremption is raised

(Minister of Defence v SANDFU [2012] ZASCA 110)

  • the level of intolerability required in order to ensure compliance with s193(2)(b) of the LRA entails same to be difficult, fraught or sour
  • this level is not easily reached and weighty reasons are required as well as tangible evidence
  • the requirement of continued employment being made intolerable must not be confused with incompatibility
  • in reviewing an arbitrator’s decision as to whether or not s193(2)(b) of the LRA is or is not applicable, same entails an application of s145 of the LRA (e g a gross irregularity) infused by the reasonable decision-maker test – entailing, in essence, that there is no reasonable objective basis justifying the connection made by the decision-maker in this regard between the evidence before him and the conclusions conclusions reached (so applied also in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC)
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?