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Article 33/2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

In terms of s34(2) of the BCEA, a deduction in terms of s34(1) can only be made if:

  • the loss/damage occurred in the course of employment and the employee is at fault
  • the employer followed a fair procedure – i e give the employee a reasonable opportunity to show why deductions should not be made
  • the total amount of debt does not exceed the actual amount of loss/damage
  • the total deductions do not exceed a quarter of the employee’s remuneration in
    money

How did the labour appeal court, in North West Provincial Legislature and Another v National Education, Health and Allied Workers Union obo Members (2023) 34 SALLR 351 (LAC) apply the aforesaid statutory provisions if the employer erroneously made payment to employees while they were participating in a strike?

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The labour appeal court adopted, inter alia, the following approach:

  • the principle of no work no pay, applicable during a strike, whether lawful or unlawful (ito s67(3) of the LRA) is not in conflict with the aforesaid statutory provisions of the BCEA
  • there is a difference between an employer’s entitlement not to pay during a strike ito s67(3) of the LRA and an employer’s entitlement to deduct from the remuneration of employees ito s34 of the BCEA
  • although there is compliance with a fair procedure as required by s34(2)(b) of the BCEA, in the absence of such fair procedure leading to an agreement and in the absence of the other requirements being complied with (i e a law, collective agreement, court order arbitration award), the right to make deductions is not triggered
  • the no work, no pay principle, contemplated in s67(3) of the LRA, is not a law contemplated in s34(1)(b) 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)?