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Article 33/2024

LabourEdge

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 s186(2)(b) of the LRA, a dismissal based on age is fair if the employee has reached the normal or agreed-upon retirement age for persons in that capacity.

What are the principles regulating the scenario where an employer permits an employee to continue working after reaching the agreed or normal retirement age but subsequently terminates his/her services on the basis that the retirement age has been reached?

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The labour appeal court, in Motor Industry Staff Association and Another v Great South Autobody CC (2022) 33 SALLR 268(LAC); (2022) 43 ILJ 2736 (LAC), adopted the following approach to this scenario:

  • s187(2)(b) of the LRA is clear and unambiguous: for a dismissal to be fair, the employee must have progressed past his/her normal retirement age (or agreed-upon retirement age)
  • there is no timeframe prescribed within which the dismissal must take place, provided it takes place after the employee had reached the normal retirement age – such fair dismissal can take place at any time after having reached the normal or agreed-upon retirement age
  • the aforesaid right accrues to both the employer and employee
  • the defence of s187(2)(b) of the LRA is only applicable if the true reason or proximate cause of the dismissal is that the employee has reached such retirement age – the defence is impermissible if the real or proximate reason is something else, e g operational requirements/misconduct/ incapacity
  • where an employee continues to work for the employer uninterrupted after reaching the normal or agreed-upon retirement age, the original employment contract is deemed to continue – effectively meaning that the agreed or normal retirement age remains intact (s187(2)(b) does not contemplate a new tacit contract coming into existence between the employer and employee by virtue of their conduct (nor does it envisage a tacit amendment of such contract))
  • the right that accrues to an employer in terms of s187(2)(b) of the LRA to dismissal an employee, who continues to work after reaching the normal or agreed-upon retirement age, is sui generis
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?