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Article 40/2026

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?

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First judgment in Landman; Solidarity – Zondo CJ

  • The first judgment penned by Zondo CJ entails, inter alia, the following approach:
    • the dismissal is only fair if termination takes place on the date of reaching the agreed-upon or normal retirement age
    • the above general approach is applicable unless there is an agreement or collective agreement indicating another retirement date, other than the date of reaching such age (e g such agreement indicating, for instance, that, if an employee retires on a certain date of the month, the retirement date will be the last day of such month)
    • therefore, retirement at a later date is automatically unfair
    • the line of cases following Schweitzer v Waco Distributors (A Division of Voltex (Pty) Ltd) (1998) 19 ILJ 1573 (LC) (Waco) has wrongly interpreted s187(2)(b) of the LRA – for further detail, see the traditional approach, dealt with in the previous article
    • procedural fairness plays no role when terminating an employee’s services on the basis of age, where an employer relies on s187(2)(b) of the LRA
    • the employer has to comply with both the contractual and statutory notice periods
    • subsequent to such termination, the parties may agree to a new contract to govern the subsequent period and this may entail a new retirement age

Second judgment in Landman; Solidarity – Van Zyl AJ

  • The second judgment penned by Van Zyl AJ entails, inter alia, the following approach:
    • when an employee reaches the agreed-upon or normal retirement age, the employer has an election to be exercised, based upon contractual principles
    • termination on the basis of age can thus take place under the protection of s187(2)(b) of the LRA at a later stage than the normal or agreed-upon retirement age, if the election is made by the employer to do so – this election is to be made unilaterally by the employer
    • however, the election must be made within a reasonable time, otherwise it could be found that the employer has not exercised such avenue
    • such election must not be confused with a waiver
    • if such election is exercised, the original contract continues
    • the Waco line of cases has wrongly interpreted s187(2)(b) of the LRA
    • whether or not procedural fairness plays any role in such termination was left open and not considered
    • the parties may agree on a new retirement age or conclude a limited duration contract

Third judgment in Landman; Solidarity – Rogers J

  • The third judgment penned by Rogers J entails, inter alia, the following approach:
    • on reaching the normal or agreed-upon retirement age, or at any time thereafter, the employer may terminate the services of the employee, e g on the basis of age, under the protection of s187(2)(b) of the LRA
    • such termination must take place on the basis of reasonable notice given by the employer to the employee
    • the Waco line of cases correctly interpreted s187(2)(b) of the LRA
    • in respect of procedural fairness, it was held that it is desirable to conduct a hearing
    • if the employer gives such reasonable notice that the contract is to be terminated on the basis of age and the employer does so under the protection of s187(2)(b) of the LRA, the parties may thereafter conclude a new contract of limited duration

Concluding remarks

  • From the above, it is apparent that there was not consensus between the three judgments as to the interpretation of s187(2)(b) of the LRA.
  • From the above, it is also apparent that two judgments regarded the Waco line of cases as incorrect, whereas only one regarded such line of cases as correct.
  • In respect of procedural fairness, the first judgment indicated that it played no role, the second judgment left this question open, and the third judgment indicated that it is desirable to hold a hearing before such termination takes place.
  • All three judgments indicate that notice should take place within the contractual and statutory notice period(s) (or, alternatively, reasonable notice).
  • And, lastly, all three judgments indicate that, if indeed the employment contract is terminated under the protection of s187(2)(b) of the LRA, then, thereafter, the parties may agree to contractually govern the subsequent period.

So, what is the safest option when dealing with an employee who reaches the normal or agreed-upon retirement age?

  • With reference to the divergent viewpoints expressed in the aforesaid three judgments, it is recommended that an employer adopts the following approach:
    • the employer is to appreciate that, in respect of the first and the second judgment, it should not ‘do nothing’ when an employee reaches the normal or agreed-upon retirement age
    • the safest option is to make the decision to fairly terminate the services of the employee on the basis of age when he/she reaches the normal or agreed-upon retirement age (unless there is an agreement or collective agreement that indicates that the retirement age is a different age than when the employee reaches the normal or agreed-upon retirement age)
    • it is desirable to comply with some type of procedural fairness before terminating the services of the employee on the basis of age
    • it is recommended that the employer, in so terminating the employment relationship, complies with the requisite contractual and statutory notice periods
    • subsequent to the termination of the employment contract, the parties may agree upon a new contract to govern the subsequent period – this could entail that the parties agree on a new retirement age or conclude a contract of limited duration
    • no matter how you consider this issue, it is clear that two judgments found, on rather convincing grounds, that the traditional Waco line of cases was wrongly decided
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?

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)?

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?