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Article 32/2024

LabourEdge

The scenario is as follows: an employee commits misconduct during a fixed-term contract; the employer takes action and dismisses the employee; when the matter is finally heard by the CCMA and a finding is made that dismissal is substantively and procedurally unfair, what are the factors to be taken into account to determine whether or not reinstatement is the appropriate remedy?

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The labour appeal court, in Toyota SA Motors (Pty) Ltd v CCMA and Others (2023) 34 SALLR 74 (LAC); (2023) 44 ILJ 1038 (LAC), approached this issue as follows:

  • integral in the exercise of an arbitrator’s discretion is the nature of the employment contract and whether it is in existence when the appropriate remedy is considered
  • the constitutional court, in Toyota SA Motors (Pty) Ltd v CCMA and Others (2016) 37 ILJ 313 (CC), held that reinstatement was confined to the scenario where, at the date of the finding that the dismissal was unfair, the original employment contract was still in existence
  • where the employee is employed on a fixed-term contract, as is the case in the scenario described above, the expiry of which precedes the finding of an unfair dismissal, reinstatement or re-employment is not legally permissible and the only legal permissible remedy is that of compensation
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)?