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Article 44/2025

What are the differences in the principles applicable to contractual, as opposed to statutory, rights and obligations?

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CONTRACTUAL RIGHTS AND OBLIGATIONS

    1. If there is an alleged breach of contractual rights and obligations, then the cause of action is founded in contract.
    2. The claim is for:
      • damages
      • compensation
      • specific performance
    3. The LC and the HC have concurrent jurisdiction ito s77(3), read with s77A(e), of the BCEA.
    4. If the applicant is successful, then the conduct of the other party will be branded as unlawful – in the case of a dismissal contrary to contractual rights and obligations, such dismissal will be branded as unlawful and ab initio void.

LRA RIGHTS AND OBLIGATIONS

  1. If the complaint is based on the presence of statutory unfairness in terms of the LRA, then the cause of action is to be found in the LRA (e g alleged unfair dismissal or alleged unfair labour practice).
  2. In this regard, the aggrieved employee claims for:
    • reinstatement
    • re-employment, or
    • compensation
  3. In the above regard, the CCMA and the LC have jurisdiction ito s193, s194 and s195 of the LRA.
  4. Should the aggrieved employee be successful, then the conduct of the employer is to be branded as unfair on the basis of the prescripts as set out in the LRA.

See:

  • Solidarity v SABC (2016) 27 SALLR 34 (LC)
  • Mahonono v National Heritage Council (2022) 33 SALLR 162 (LC)
  • SAMWU v Tswaing Local Municipality (2022) 33 SALLR 60 (LAC)
  • Greyling v George Randall High School (2022) 33 SALLR 279 (LC)
  • NUMSA obo Fohlisa v Hendor Mining Supplies (2017) 38 ILJ 1560 (CC)
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)?