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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)
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)?