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Article 31/2021

Labour Edge

In general terms, the determination of the fairness of a dismissal requires an arbitrator to form a value judgment, having regard to the interests of both the employer and the employee, and to achieve a balanced and equitable assessment of the fairness of the sanction.  What are the types of factors to be taken into account in determining whether the employer had thus acted fairly in deciding to dismiss an employee?

  1. the importance of the rule that had been breached (seriousness of the misconduct);
  2. the reason the employer imposed the sanction of dismissal;
  3. the explanation presented by the employee for the misconduct;
  4. the harm caused by the employee’s conduct;
  5. whether additional training and instruction may result in the employee not repeating the misconduct;
  6. the service record of the employee;
  7. the breakdown of the trust/employment relationship between the employer and employee;
  8. the existence or not of dishonesty;
  9. the possibility of progressive discipline;
  10. the existence or not of remorse;
  11. the job function of the employee; and
  12. the employer’s disciplinary code and procedure (Sidumo (supra), at paragraph [78]; National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC), at paragraph [82]; Bridgestone SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2016) 37 ILJ 2277 (LAC), at paragraphs [17]–[18]; Woolworths (Pty) Ltd v SA Commercial Catering and Allied Workers Union and Others (2016) 37 ILJ 2831 (LAC), at paragraph [14]; Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC), at paragraph [30]; Eskom Holdings Ltd v Fipaza and Others (2013) 34 ILJ 549 (LAC), at paragraph [54]; Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council and Others (2011) 32 ILJ 1057 (LAC), at paragraph [34]; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others (2010) 31 ILJ 901 (LAC), at paragraphs [37]–[38]; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC), at paragraph [94]).
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)?