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Article 45/2025

Prior to 2018, if an employee wanted to institute action against an employer for monies owed to such employee in terms of a contract of employment, there was only one route available to such employee, namely, to institute action against the employer ito s77(3), read with s77A(e) of the BCEA. The BCEA Amendment Act of 2018 changed all of that. It also changed the alternative dispute-resolution methods to be utilised when money is owed in terms of the National Minimum Wage Act (NMWA), a sectoral determination or a collective agreement, by means of the introduction of s73A. What are the current dispute-resolution paths in the above regard?

What are the current dispute-resolution paths in the above regard?

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EMPLOYEE OR WORKER EARNING ABOVE THE THRESHOLD ito s6(3) OF THE BCEA

  • If there is a dispute about monies owed in terms of a contract of employment, the NMWA, a sectoral determination or a collective agreement, the following dispute- resolution paths are available to the employee:
    • labour court
    • high court
    • magistrate’s court
    • small claims court (currently not operative)

IF MONIES ARE OWED ITO THE NMWA, A CONTRACT OF EMPLOYMENT, SECTORAL DETERMINATION OR COLLECTIVE AGREEMENT AND THE EMPLOYEE OR WORKER EARNS BELOW THE THRESHOLD ITO S6(3) OF THE BCEA

  • The dispute-resolution path is compulsory con-arb at the CCMA.
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)?