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Article 39/2026

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)?

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  • The traditional approach was recently applied by the labour court, in Slabbert v Muji Motor Group (Pty) Ltd (2024) 35 SALLR 45 (LC) (Slabbert), where it was, once again, held that, subsequent to an employee reaching the normal or agreed retirement age and continuing to work, the right to retire accrues to both the employer and employee immediately after the normal or agreed-upon retirement age.
  • In line with the traditional approach, the court also found that the right can be exercised at any time after this normal or agreed-upon retirement age and, at that stage, the employer has, at its disposal, the defence as set out in s187(2)(b) of the LRA, rendering the dismissal based on the age of the employee as fair.
  • The consequences of this traditional approach can, furthermore, be summarised as follows:
    • the original contract of employment does not terminate by effluxion of time when the employee reaches the normal or agreed-upon retirement age
    • a new tacit contract of employment does not come into being
    • neither is there a tacit amendment to the original contract of employment
  • The traditional approach also entails the viewpoint that the employer does not waive its right to subsequently retire the employee if such retirement did not happen on the normal or agreed-upon retirement age.
  • Lastly, the traditional approach entails that, if an employer permits an employee to work beyond the normal or agreed-upon retirement age, it cannot subsequently utilise age to circumvent, or hide, the real reason for the dismissal (such as misconduct, incapacity, ill-health or injury, etc).

See, further: Motor Industry Staff Association v Great South Autobody CC t/a Great South Panel Beaters (2022) 33 SALLR 268 (LAC)

Food for thought

  • This original approach was subsequently overturned in two judgments of the constitutional court, in Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panel Beaters (Landman) and Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) (combinedly referred to as Landman; Solidarity).
  • However, the third judgment of the constitutional court, in Landman; Solidarity, of Rogers J, in essence, is in line with the aforesaid traditional approach.
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 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?