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Article 37/2023

On the basis of the constitutional court’s approach in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021) 32 SALLR 33 (CC), it is apparent that arbitrators and the courts are required to separately consider substantive fairness and procedural fairness issues when determining compensation.

It therefore appears not to be permissible for arbitrators and courts to consider fairness holistically, but what is required is to determine various relevant factors relating to substantive fairness and procedural fairness, independently, in determining compensation.

What is the recommended approach therefore to be followed in the light of the aforesaid approach of the constitutional court?

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The constitutional court, in McGregor, with reference to Liebowitz v Fernandes (2002) 23 ILJ 278 (LAC), identified the following approach that should be adopted when so determining compensation:

substantive fairness considerations

  • consideration must be given to the nature and extent of the misconduct (the reason for the dismissal plays an important role – e g dismissal on the basis of continual late coming is a less serious offence than dismissal on the basis of sexual harassment and this factor should be taken into account when determining compensation)
  • the attitude of the employee should also be considered
  • if the reason for which the employee was dismissed is serious, notwithstanding procedural unfairness, either no award for compensation should be made or it should be substantially limited

procedural fairness considerations

  • the degree of deviation from the required procedural fairness norm is important:
    • if it is insignificant, potentially such deviation should have a small influence on compensation
    • on the other hand, if such deviation is significant, it will potentially have a greater influence
      on the amount of compensation

In view of the aforesaid approach adopted by the constitutional court, it is submitted that, should there be non-compliance with the aforesaid principles, then potentially the award would be rendered reviewable

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)?