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Article 40/2021

Labour Edge

To what extent is an arbitrator entitled to alter the duty to begin and the discharging of the onus?

  1. in arbitration proceedings before the CCMA, it is not uncommon for commissioners to be confronted with a less than ideal scenario where a representative of the employer also acts as its witness. Equally so, it is not uncommon for employees to represent themselves in those proceedings and to lead their own evidence. It was the labour court’s view, however, that, irrespective of the circumstances of the case, the question of the duty to begin and discharging the onus in dismissal disputes is a statutory requirement imposed by the provisions of s192 of the LRA. Those provisions cannot be circumvented for the sake of convenience or expedience;
  2. there is a dispute as to whether the commissioner had compelled Langa to testify first, or whether, as the commissioner had stated in the award, Langa had offered to begin. The record of proceedings, however, indicated that the parties had reached agreement on who should begin. The labour court believed that that dispute was inconsequential, as, in line with the provisions of s192 of the LRA, it was for the commissioner to simply remind the parties what their statutory obligations were in regard to the issue of onus, and to give direction in regards to the duty to begin irrespective of the constraints (if any) Langa was faced with; and
  3. to the extent that the commissioner first heard the evidence of Langa, when the duty to begin and to discharge the onus in regards to the dismissal was on Muguto, there could be no doubt that the commissioner had clearly misconceived the question of onus, and had committed a gross procedural irregularity, which, on its own, rendered the award reviewable. That irregularity had prevented Pikitup from having its case fairly heard, or prevented a fair trial of the issues.
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)?