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Article 35/2022

What are the principles governing substantive fairness of a dismissal and do such principles cater for a competent verdict (a finding of guilty on a different charge than a charge faced at the disciplinary enquiry)?

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The original approach entailed that a charge sheet is required to contain the charge(s)/allegation(s) that an employee is required to answer.  Therefore, for instance, where the element of intent is absent from the charge of fraud, the employee is to be found not guilty (National Commissioner, SAPS v Meyers [2012] 7 BLLR 688 (LAC).

However, subsequently, it was held that the above approach was unduly formalistic and the true enquiry was whether or not the dismissal was fair, with reference to the allegations against the employee or the standard of conduct required (Mashigo v SAPS [2018] 10 BLLR 943 (LAC).

The aforesaid identification of the true enquiry to be undertaken is based on the principle that disciplinary sanction may be imposed if:

  • the employee knew or reasonably should have known the workplace rule/standard
  • the workplace rule/standard had been contravened
  • no significant prejudice flowed from an incorrect categorisation of the alleged transgression (Woolworths v CCMA (2011) 32 ILJ 2455 (LAC), Mashigo judgment (supra) and SA Police Service v Magwaxaza and Others (2019) 30 SALLR 42 (LAC); (2020) 4 ILJ 408 (LAC)

The aforesaid three judgments of the labour appeal court also adopted the approach that all an employee is required to be informed of is that:

  • on a certain date, time and place
  • he/she allegedly acted wrongfully or
  • acted in breach of an applicable workplace standard/rule

In the light of the aforementioned summary of developments that took place, what is the content of a competent verdict within the labour law environment?

In EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 30 SALLR 43 (LAC); (2019) 40 ILJ 2477 (LAC), referred to with approval in the SA Police Service judgment (supra), the following was stated in this regard:

  • an enquiry is not like a criminal trial where guilt is to be proven in respect of the charge the employee faces
  • the true enquiry is as stated in the Mashigo judgment (supra), namely, a determination as to whether or not the dismissal is fair with regard to the allegations made against the employee or the standard of conduct required from the employee
  • it is too formalistic to require guilt in respect of the charge (and elements) formulated by an employer
  • a competent verdict (another charge not mentioned) is therefore permitted if there is no prejudice to the employee – it is not a requirement that the competent verdict is to be mentioned in the charge sheet
  • it is, however, well-established that the employer cannot ordinarily change the charge or add a new charge after the commencement of the hearing if it is prejudicial to do so (Transport and General Workers Union and Another v Interstate Bus Lines (Pty) Ltd (1988) 9 ILJ 877 (IC); Samancor Chrome Ltd (Eastern Chrome Mines) v CCMA (2020) 31 SALLR 142 (LAC)).  Prejudice will be present if:
  • the employee would have conducted his or her defence differently or
  • would have had other defences (see also S v Mwali 1992 (2) SACR 281 (A))
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)?