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Article 39/2024

LabourEdge

What is the approach to be adopted by an individual employee claiming that his/her employer has unilaterally changed the terms and/or conditions of employment applicable to him/her?

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The labour court, per Van Niekerk J, dealt with the aforesaid issue in Nhlapo Mofokeng v Emfuleni Municipality and Another (2023) 44 ILJ 815 (LC); (2022) 33 SALLR 276 (LC) as follows:

  • s64(4) of the LRA permits an employee or a trade union, who refers a dispute about a unilateral change to terms and conditions of employment to a council or the CCMA, in such referral and for the period mentioned in s64(1)(a) (a maximum of 30 days), to (a) require the employer not to implement the unilateral change, or (b) if already implemented, require the employer to restore such terms and conditions of employment
  • with reference to the aforesaid statutory provision, it is important to indicate that s64(1)(a) of the LRA determines that the right to strike and the recourse to lockout occurs if the issue in dispute has been referred to the council or the CCMA and if either a certificate of non-resolution has been issued or the period of 30 days has lapsed since the referral was received by the council or the CCMA (the maximum of 30 days)
  • in terms of s64(5) of the LRA, the employer is required to comply with the requirement to restore the existing terms and conditions of employment or not to implement the anticipated changes within 48 hours of service of the referral on it – with reference to Schoeman and Another v Samsung Electronics SA (Pty) Ltd (1997) 18 ILJ 1098 (LC) and Du Randt v Ultamat SA (Pty) Ltd and Another (2013) 34 ILJ 2228 (LC), it was held that s64 only pertains to employees in a strike context (or lockout context) and not to an individual employee

Thus, unlike the scenario under the 1995 LRA, where the unilateral change to terms and conditions of employment constituted an unfair labour practice, it is apparent that the only option available to an individual employee is to challenge the employer before the labour court in terms of s77(3), read with s77A(e), of the BCEA.

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)?