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Article 33/2022

The labour appeal court recently ruled that an employer cannot rely at arbitration on a reason for dismissal different from the reason for dismissal utilised internally.  What are the considerations to be taken into account in coming to such a conclusion and what are the consequences of this judgment?

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In Samancor Chrome Ltd (Eastern Chrome Mines) v CCMA and Others (2020) 31 SALLR 142 (LAC), the labour appeal court identified the following relevant principles:

  • an employer should notify the employee of any allegation of misconduct ‘using a form and language that the employee can reasonably understand’ (item 4(1), Schedule 8 Code of Good Practice: Dismissal)
  • while it is immaterial what label is given to the misconduct alleged, notice should be given in a manner which provides a reasonable degree of clarity so as to enable the employee to answer to the allegation raised (see Zeelie v Price Forbes (Northern Province) (1) (2001) 22 ILJ 2053 (LC), at 2063A-C; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others [2009] ZALAC 14; (2010) 31 ILJ 901 (LAC); [2010] 5 BLLR 513 (LAC), at paragraph [41])
  • the arbitration hearing was one de novo with there being no bar on relevant additional evidence being adduced at arbitration.  This was so since the determination of the fairness of a dismissal at arbitration ‘is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the arbitrator’ (County Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (1999) 20 ILJ 1701 (LAC); [1999] 11 BLLR 1117 (LAC), at paragraph [11]
  • it is, however, not open to an employer to alter or amend the reason for dismissal or to rely on an entirely different reason for such dismissal at arbitration, and there was no merit in the appellant’s submission that the employee’s misconduct ‘must be viewed through the prism of the contextualised version during the course of the domestic hearing and subsequent arbitration proceedings’.  To the extent that this suggested that it was permissible for the reason for dismissal to morph from that advanced by the employer at the time of dismissal to a different reason advanced at arbitration, this was simply not the case
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)?