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Article 44/2021

Labour Edge

What are the consequences of disavowal clauses?

With reference to Pikitup Johannesburg (Soc) Ltd v Muguto and Others (2019) 30 SALLR 186 (LC), the following consequences may be identified:

  1. In most instances, such contracts contain the standard clause expressly stating that the employee had no right to renewal or expectation of a renewal (the so-called disavowal clause). It is accepted, on the authority of Mediterranean Woollen Mills (Pty) Ltd v SACTWU (supra), that, despite these clauses, a reasonable expectation could still arise during employment if assurances, existing practices and the conduct of an employer led an employee to believe that there was hope for a renewal, whether on a temporary or an indefinite basis. Even then, these factors are still subject to an objective assessment.
  2. In the end, however, when a renewal or extension is effected, it cannot be said that, on its own, it varies the original terms and conditions of the contract for the purposes of creating or proving a legitimate expectation, unless this is expressly stated when the contract is renewed or extended.
  3. Significant with the facts of this case is that, at some point of the duration of the fixed-term contract, Muguto had been moved to another position as general manager: bulk. Even then, the letter of transfer dated 27 March 2014 had expressly stated that, other than the change in roles and reporting structures, her remuneration and other terms and conditions remained the same.
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)?