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Article 42/2021

Labour Edge

Once an employee discharged the onus of proving a dismissal, what is the content of the onus on the employer?

  1. In an instance such as this, where obviously the dismissal is placed in dispute, the enquiry invariably transcends into that of jurisdiction, as, without the fact of a dismissal having been proven, the CCMA would lack jurisdiction to determine the dispute (see Mnguti v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 3111 (LC), at paragraph [14]). Where, however, the fact of a dismissal was established, it would then be for the employer to establish that the dismissal was procedurally and substantively fair.
  2. In South African Rugby Players Association and Others v SA Rugby (Pty) Limited and Others; SA Rugby Pty Limited v South African Rugby Players Union and Another [2008] 9 BLLR 845 (LAC); (2008) 29 ILJ 2218 (LAC), it was held that:

‘[39]   The issue that was before the commissioner was whether there had been a dismissal or not.  It is an issue that goes to the jurisdiction of the CCMA.  The significance of establishing whether there was a dismissal or not is to determine whether the CCMA had jurisdiction to entertain the dispute.  It follows that if there was no dismissal, then the CCMA had no jurisdiction to entertain the dispute in terms of s191 of the Act.

[40]    The CCMA is a creature of statute and is not a court of law.  As a general rule, it cannot decide its own jurisdiction.  It can only make a finding for convenience.  Whether it has jurisdiction or not in a particular matter is a matter to be decided by the Labour Court.  In Benicon Earthworks and Mining Services (Edms) Bpk v Jacobs NO and Others 1994 (15) ILJ 801 (LAC) at 804C-D, the old Labour Appeal Court considered the position in relation to the Industrial Court established in terms of the predecessor of the current Act.  The court held that the validity of the proceedings before the Industrial Court is not dependent upon any finding which the Industrial Court may make with regard to jurisdictional facts but upon their objective existence.  The Court further held that any conclusion to which the Industrial Court arrived on the issue has no legal significance.  This means that, in the context of this case, the CCMA may not grant self-jurisdiction which it does not have.  Nor may it deprive itself of jurisdiction by making a wrong finding that it lacks jurisdiction which it actually has.  There is, however, nothing wrong with the CCMA enquiring whether it has jurisdiction in a particular manner provided it understood that it does so for the purpose of convenience and not because its decision on such an issue is binding in law on the parties.  In Benicon’s case, the court said at 804C-D:

“In practice, however, an Industrial Court would be short-sighted if it made no such enquiry before embarking upon its task.  Just as it would be foolhardy to embark upon proceedings which are bound to be fruitless, so too would it be fainthearted to abort the proceedings because of a jurisdictional challenge which is clearly without merit.”

…

[43]    What s186(1)(b) provides for is that there would be a dismissal in circumstances where an employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms but the employer only offered to renew it on less favourable terms or did not renew it. The operative terms in s186(1)(b) are in my view, that the employee should have a reasonable expectation, and the employer fails to renew a fixed-term contract or renew it on less favourable terms. The fixed-term contract should also be capable of renewal.

[44]    The appellants carried the onus to establish that they had a “reasonable expectation” that their contracts were to be renewed. They had to place facts which, objectively considered, established a reasonable expectation. Because the test is objective, the enquiry is whether a reasonable employee in the circumstances prevailing at the time would have expected the employer to renew his or her fixed-term contract on the same or similar terms. As soon as the other requirements of s186(1)(b) have been satisfied it would then be found that the players had been dismissed, and the respondent (SA Rugby) would have to establish that the dismissal was both procedurally and substantively fair.”

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)?