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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
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)?