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Article 31/2024

LabourEdge

In terms of s41(4) of the BCEA, an employee, who unreasonably refuses to accept an employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay.

Is a binding agreement between a retrenching employer and the alternative employer required for the above section to be applicable and what role does the retrenching employer have to play in arranging alternative employment for such section to be applicable?

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  • The labour court recently, in Servest Landscaping Turf Maintenance (Pty) Ltd v SACCAWU (2023) 34 SALLR 77 (LC); (2023) 44 ILJ 380 (LC), adopted the following approach:
    • a distinction is to be drawn between the scenario where the retrenching employer plays a role in arranging alternative employment with another employer and the scenario that existed in Irvin & Johnson Ltd v CCMA and Others (2006) 17 (3) SALLR 1 (LAC); (2006) 27 ILJ 935 (LAC) (where the retrenching employer made it a condition that the successful bidder for service it was outsourcing would have to employ all its existing staff)
    • the Irvin & Johnson judgment (LAC) is thus only authority for the viewpoint that the absence of such mutually binding undertaking entails that the retrenched employees will still be entitled to severance pay in terms of s41(4) of the BCEA
    • on the other hand, the labour court confirmed the approach adopted by the labour appeal court, in Vergenoeg vir Seniors v Stone and Others (JA45/08) [2010] ZALAC 35 (4 June 2010), to the effect that the retrenching employer is not required to pay severance pay if it ‘arranged’ the alternative employment and such offer was brought about as a result of its efforts
  • In casu, the labour court came to the following conclusions:
    • a collaborative process was underway between the retrenching employer and the new employer to hold interviews and to make offers to employees facing retrenchment
    • the retrenching employer had set the ball rolling by approaching the new employer to take on the staff it could not accommodate
    • the retrenching employer kept a close eye on the new employer’s recruitment of its staff and made its facilities and premises available
    • there was no evidence that interviews had in fact been a barrier to employment
    • consequently, the labour court in casu held that there was no obligation on the retrenching employer to pay the requisite severance pay in terms of s41(4) of the BCEA
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)?