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Article 39/2023

Article 38/2023 dealt with the calculation of compensation when a dismissal is only procedurally unfair in terms of s193(2)(d) of the LRA. On the other hand, how is compensation to be calculated when s193(2)(a) to s193(2)(c) of the LRA are applicable?

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The labour court recently, in Moloantoa v CCMA (2021) 32 SALLR 46 (LC), referred with approval to ARB Electrical Wholesalers v Hibbert (2015) 36 ILJ 2989 (LC) where it was stated that the following factors are to be taken into account when determining such compensation:

  • the nature and extent of the iniuria suffered by the employee
  • the circumstances within which the infringement took place
  • the behaviour of the employer
  • the extent of the employee’s humiliation or distress
  • the abuse of the relationship between the parties
  • the attitude of the employer subsequent to the iniuria

whether or not the employer benefited from external factors (such as the employee’s subsequent employment by a third party) – the general principle is the employer may not benefit from such external factors

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)?