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Article 4/2026

LabourEdge

The previous three articles dealt with misconduct, dismissals on the basis of participation in an unprotected strike (and in line with current case law also covering the collective withdrawal of labour) and incapacity poor work performance.  In this article, we will deal with some of the important aspects dealing with incapacity: ill-health, injury and other forms of incapacity as contained in the Code of Good Practice: Dismissal (the Code).

What are the similarities contained in item 21 of the Code, as compared to the repealed Schedule 8?

How does the Code deal with supervening impossibility of performance?

What are the new guidelines contained in the Code dealing with incompatibility?

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Similarities between item 21 of the Code, when compared to the repealed Schedule 8

Item 21(1) to item 21(5) of the Code correspond largely with items 10(1) to 10(4) of the repealed Schedule 8, apart from the Code indicating specifically that ill-health includes both physical and mental ill-health (in line with current case law).

Item 21(6): incapacity unrelated to ill-health or injury

The supreme court of appeal, in Samancor (2011) 32 ILJ 1618 (SCA), held that various instances of supervening impossibility of performance should be treated as incapacity in terms of items 10 and 11 of the repealed Schedule 8 (in essence, bringing supervening impossibility of performance within the ambit of incapacity ill-health or injury).  These instances include imprisonment, a military call-up, being subject to a closed shop restriction and legal prohibition on employment (e g not complying with the requirement to have a valid type of licence).

The above approach was subsequently followed by the labour appeal court in Armscor (2018) 29 SALLR 16 (LAC).  The aforesaid approach has found its way into item 21(6) of the Code and imprisonment is provided as an example preventing an employee from performing duties.  The Code clearly indicates that the employer must:

  • determine whether such supervening impossibility of performance is temporary or permanent
  • assess the extent of the incapacity
  • investigate all possible alternatives short of dismissal

No matter how this type of incapacity is evaluated, it appears that, both in terms of the aforesaid case law, as well as the Code, the substantive and procedural fairness requirements to be complied with are those of incapacity ill-health or injury and not incapacity poor work performance.

Item 21(7) of the Code: incompatibility

The Code categorises incompatibility as the inability of an employee to work in harmony with an employer’s business culture, or with fellow employees.  The Code clearly indicates that such incompatibility may justify dismissal.  In respect of such incompatibility, the following is of relevance:

  • incompatibility is located in item 21 dealing with incapacity ill-health or injury and not item 20 dealing with incapacity poor work performance
  • it can thus be assumed that such incompatibility is to be dealt with in terms of the substantive and procedural fairness requirements relating to incapacity ill-health or injury and not incapacity poor work performance
  • thus, in line with case law, the viewpoint is held that the potential dismissal in this regard is, at least, subject to the following two considerations, specifically applicable to incapacity ill-health or injury:
    • the extent to which the employee’s work circumstances may be adopted or, if not possible
    • the extent to which the employee’s duties may be adopted
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)?