Skip to main content

Article 4/2024

LabourEdge

The Labour Relations Act 66 of 1995 (‘LRA’) has created a statutory formula to be applied when dealing with breaches of workplace rules.  Depending on the manner in terms of which the relevant workplace rule has been breached, various items of Schedule 8 of the LRA would be applicable.  What is the approach to be adopted to determine which items of Schedule 8 are applicable when judging the statutory fairness of an employer’s conduct?

_____________________________________

Scenario 1: misconduct

  • If the employee breached a workplace rule with fault (intentionally or negligently) and in a wrongful manner, then, in essence, the employee committed misconduct
  • Misconduct generally is to be treated in terms of items 1 to 5 and 7 of Schedule 8.
  • On the other hand, misconduct, entailing the participation in an unprotected strike and the collective withdrawal of labour, is to be dealt with in terms of items 6 and 7 of Schedule 8

Scenario 2: ill-health/injury

If the employee fails to comply with a workplace rule in a faultless scenario (i e without intention or negligent) but still wrongfully, and the basis for non-compliance with such workplace rule is his/her ill-health or injury, then items 10 and 11 of Schedule are applicable.

Scenario 3: poor-work performance

  • Scenario 3 is similar to scenario 2, but the only difference is that the reason for such non-compliance is not the ill-health/injury of the employee, but the employee’s poor work performance.
  • Treating an employee for poor work performance is thus the default position if non-compliance with a workplace rule has not been established on the basis of ill-health/injury and such non-compliance is faultless – items 8 and 9 of Schedule 8 of the LRA are then applicable.
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)?