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Article 41/2024

LabourEdge

The constitutional court, in National Union of Metalworkers of SA v Lufil Packaging (2020) 31 SALLR 138 (CC); (2020) 41 ILJ 1846 (CC), found that the membership of a union by an employee, who was employed in a sector which fell outside of the scope of the union’s constitution, was invalid and void ab initio.

With reference to the aforesaid legal position, how did the labour appeal court subsequently, in NUMSA v Afgri Animal Feeds (2022) 33 SALLR 270 (LAC); (2022) 43 ILJ 1998 (LAC), deal with the following issues:

  • what is the distinction between collective bargaining rights and individual rights, like the right to representation?
  • where an employee does not fall within the sector covered by the union’s constitution, is the union still permitted to act as a party to proceedings on behalf of the employee or in the interests of such employee?

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The labour appeal court, in the Afgri Animal Feeds judgment, approached the aforesaid questions as follows:

  • the Lufil Packaging judgment (CC) is only applicable to the issue of collective bargaining rights (e g organisational rights disputes)
  • the approach adopted in such judgment by the constitutional court is not applicable to individual rights, such as representation in dismissal and unfair labour practice disputes
  • in terms of s191(1)(a) of the LRA, an employee (and not a trade union) has the right to refer disputes about the fairness of dismissals or unfair labour practices to the CCMA or the relevant bargaining council
  • in terms of s191(5)(b) of the LRA, an employee (and not a trade union) may refer disputes to the labour court regarding automatically unfair dismissals, dismissals on the basis of an employer’s operational requirements, dismissals for participation in an unprotected strike and dismissals where an employee refused to join, or was refused membership, or expelled from a trade union party to a closed shop agreement
  • in terms of s200(1) of the LRA, a registered trade union/employers’ organisation may act in the following capacities in disputes where members are parties:
    • own interest (s200(1)(a))
    • on behalf of its members (s200(1)(b))
    • in the interests of its members (s200(1)(c)
  • apart from s200(1) of the LRA, in terms of s200(2) of the LRA, a registered trade union or employers’ organisation is entitled to be a party to any proceedings where any of its members is a party
  • therefore, in casu, it was held that NUMSA was entitled to represent employees employed in an industry which falls outside the scope provided for in the union’s constitution – and the union is not required to prove valid membership like in the case of collective bargaining
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)?