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Article 30/2024

LabourEdge

The scenario is as follows: the employee was appointed as an accountant: creditors at a municipality; Absa Bank alerted the municipality that there were possible fraudulent activities going on and the services of PricewaterhouseCoopers were used to conduct a forensic investigation; such investigation indicated that employee X, who did not have access via the internet to the municipality’s account, attempted to access such account; employee X was charged with misconduct in that he ‘failed to conduct himself with honesty and integrity by attempting to access the municipality’s account’; the employee was found guilty and dismissed; subsequently, the relevant bargaining council reinstated the employee and the municipality was unsuccessful in its attempt to overturn the arbitration award.

After reinstatement, the municipality continued to investigate the matter and, on this basis, formulated two different new charges, namely: ‘Dishonesty in deceiving the municipality by sharing your computer password with other employees whereby the computer was being used for fraudulent activities’ and/or ‘failure to comply with your employer’s IT policy by sharing your computer password with other employees resulting in the computer being used for fraudulent activities’ – employee X was dismissed by the municipality and the relevant bargaining council determined that the dismissal was fair.

With reference to the aforesaid factual circumstances, what approach did the labour court recently adopt in SA Municipal Workers obo Malatsi v Local Government Bargaining Council and Others (2023) 44 ILJ 1317 (LC); (2023) 34 SALLR 78 (LC)?

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The labour court, in the aforesaid matter, per Prinsloo J, adopted the following approach to determine whether an employer can institute disciplinary action for a second time for conduct that arose from the same set of facts:

  • in BMW SA v Van der Walt (2002) ILJ 113 (LC), it was held that fairness is the only yardstick to determine whether a second enquiry is permissible – in essence, the same approach was followed in Branford v Metrorail (2003) 24 ILJ 2269 (LC) and Executive Council Finance KwaZulu-Natal v Dorkin [2008] 6 BLLR 540 (LAC)
  • in SARS v CCMA [2008] 6 BLLR 540 (LAC), it was held that the second enquiry would only be invalid if not permitted in terms of an applicable instrument, such as a disciplinary code, collective agreement, etc (this approach was followed in NUM v Arcelormittal [2020] 2 ZALCJHB 167
  • consequently, it was held that the dismissal of employee X was fair
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)?