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Article 36/2021

Labour Edge

On what basis will an employer be entitled to dismiss an employee who has been imprisoned?

The labour court recently, in Molehe v Public Health and Social Development Sectoral Bargaining Council and Others (2019) 30 SALLR 182 (LC), adopted the following approach:

  1. the applicant had relied on the principle that ‘incapacity’ in labour law could also arise from imprisonment. However, as the labour appeal court, in Samancor Tubatse Ferrochrome v Metal and Engineering Industries Bargaining Council and Others (2010) 3 ILJ 1838 (LAC), stated:

‘[13]   …[I]n principle, it cannot be the case that the law has developed an inflexible rule; that is that incapacity which is outside of the control of the employee cannot be a cause for dismissal.’;

  1. the labour court noted that the above labour appeal court judgment had, in fact, been overturned on appeal because of the way the review test had been applied. However, that incapacity, outside the control of an employee, can lead to either a fair or unfair dismissal was reaffirmed; and
  2. in National Union of Mineworkers and Another v Samancor Ltd (Tubatse Ferrochrome) and Others (2011) 32 ILJ 1618 (SCA); [2011] 11 BLLR 1041 (SCA), the supreme court of appeal stated as follows:

‘It was submitted before us by its counsel that Samancor had not purported to dismiss Mr Maloma for fault on his part (that is, for the disciplinary offence of absenteeism).  He was dismissed because he was no longer capable of performing his employment duties (that is, for incapacity).  Reminding us of the ordinary consequences for a contract of the inability of one party to perform, counsel submitted that the inability of Mr Maloma to present himself for work in itself entitled Samancor to bring the employment to an end, which is what it had purported to do.

The submission is not altogether correct.  While ordinary principles of contract permit a contracting party to terminate the contract if the other party becomes unable to perform, that is not the end of the matter in the case of employment.  The question that still remains in such cases is whether it was fair in the circumstances for the employer to exercise that election.  In making that assessment the fact that the employee is not at fault is clearly a consideration that might and should properly be brought to account.  But the fact that Mr Maloma was not at fault was not the sole reason for the arbitrator’s decision.  Another consideration that he took account of – and it was clearly decisive of his decision – was that there was “no evidence that [Mr Maloma] was occupying such a key position in the company that necessitated his dismissal after ten days of absence”…’

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)?