Skip to main content

Article 45/2024

LabourEdge

The labour appeal court recently had the opportunity to identify the different approaches that could be adopted to compulsory interest arbitration in terms of s74(4) of the LRA in respect of essential services – what were these options and on what basis would an arbitrator decide which one is more appropriate than others in a specific scenario?

_____________________________________

  • The labour appeal court, in Working on Fire (Pty) Ltd v NUMSA and Others (2022) 43 ILJ 2764 (LAC); [2023] 1 BLLR 39 (LAC); (2022) 33 SALLR 64 (LAC), approached the above issues as follows:
    • in the scenario where the parties do not agree to an arbitrator’s terms of reference and it is left to the arbitrator to determine, in terms of s136(4) of the LRA, the arbitrator has to ascertain the applicable rule of law or legal questions available to him or her – this is a question of law
    • the arbitrator has to make a value judgment as to which of the options listed below are best suited to resolve the dispute before him or her – this is a matter of discretion and not a question of law
  • The labour appeal court, in the aforesaid matter, identified the following three options available to an arbitrator in the aforesaid scenarios, namely:
    • the hypothetical outcome approach (NEHAWU v Lifecare Health [1999] 2 BALR 153 (CCMA)) – this approach entails the arbitrator anticipating where bargaining should have been struck had the bargaining continued to conclusion and in good faith
    • the fairness approach (SAMWU v Water and Sanitation Services SA (Pty) Ltd [2002] 1 BALR 89 (CCMA)) – this approach entails that the arbitrator is to be persuaded on the basis of fairness, which respective case should be accepted and the arbitrator is to investigate whether the respective parties had proffered sufficient reasons for the acceptance of their respective positions
    • final offer position/approach (NUMSA v Working on Fire [2018] 10 BALR 1082 (CCMA)) – the arbitrator has no choice but to decide between the respective final proposals of the parties, with no discretion to merely split the difference between the final positions
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)?