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Article 42/2024

LabourEdge

Is a commissioner empowered to proceed with an arbitration involving a dispute referred to in terms of s191(5)(a) of the LRA, despite an objection by the other party to the dispute, but in non-compliance with rule 17(2) of the CCMA rules?

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  • In terms of rule 17(2) of the CCMA rules, a party, that intends to object to a dispute being dealt with in terms of s191(5A), must deliver a written notice to the CCMA and the other party, at least seven days prior to the scheduled date of the con-arb hearing.
  • In terms of s191(5A) of the LRA, the CCMA, or the relevant bargaining council, must commence the arbitration immediately after certifying that the dispute remains unresolved if:
    • the dismissal relates to probation, or
    • the unfair labour practice relates to probation, or
    • there is no objection for the matter to proceed immediately to arbitration
  • The labour court, in Valinor Trading 133 CC t/a Kings Castle v CCMA and Others (2023) 44 ILJ 1106 (LC); (2023) 34 SALLR 13 (LC), adopted the following approach to the aforesaid issues:
    • s34 of the Constitution guarantees everyone to have any dispute, that can be resolved by application of law, decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum
    • it is wrong to interpret s191(5A)(c) of the LRA to mean that any objection raised outside the prescribed period in rule 17(2) of the CCMA rules ceases to be an objection
    • rule 35(1) of the CCMA rules provides the CCMA and the commissioner with a wide discretion to condone any failure to comply, on good cause shown, and this discretion is to be utilised when there is non-compliance with the seven-day time period as set out in rule 17(2) of the CCMA rules – it does not follow that non-compliance with the seven-day requirement in rule 17(2) renders defective an objection to the point that it can be ignored
  • In response to this judgment, the Director of the CCMA, on 6 April 2023, issued a directive indicating, inter alia, that rule 17(2) remains in force, but any failure with the seven-day time period can be condoned, on good cause shown.
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)?