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Article 35/2024

LabourEdge

In the scenario where an employer was not permitted to trade during the Covid-19 lockdown (i e hard lockdown), are the employees, who could not tender their services lawfully, entitled to their normal benefits, such as leave and bonus benefits?

What is the difference between the aforesaid scenario and the scenario where the employer was permitted to trade in some form during the national lockdown (i e soft lockdown) but elected not to do so on account of its evaluation that trading would not be profitable?

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The labour court, in Glen Carol (Pty) Ltd v National Bargaining Council for the Clothing Manufacturing Industry (2023) 44 ILJ 563 (LC); (2022) 33 SALLR 273 (LC), adopted the following approach to this scenario:

  • if the employer was not permitted to trade during the lockdown and the employees could not tender their services lawfully, this constitutes a form of temporary (subjective) impossibly of performance and the employer is not obliged to pay wages – seeing that the affected employees could not tender their services lawfully, under the above circumstances, the employer’s obligation to pay wages was equally suspended, including the entitlement to benefits, such as leave and bonus payment
  • however, different to the above is the scenario where the employer was permitted to trade in some form during the lockdown but elected not to do so – the affected employees could tender their services lawfully, but the employer refused to pay them and, under these circumstances, the defence of supervening impossibility of performance is not available to the employer (Matshazi v Mezepoli Melrose Arch (Pty) Ltd and Another (2021) 42 ILJ 600 (GJ))
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)?