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Article 46/2022

What are the principles governing frequent absenteeism due to illness, so formulated by the labour court in General Motors SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2018) 39 ILJ 1316 (LC)?

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The labour court summarised the aforesaid principles, dealing with incapacity dismissals based on frequent absenteeism for illness, as follows:

‘[12] Given the applicants grounds for review, it is also necessary to summarise, in brief terms, the legal principles applicable to sick absence. In AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC); [1995] 9 BLLR 1 (LAC), the Labour Appeal Court said the following:

“It seems to us that the company, having accepted the authenticity of the medical certificates, was entitled to rely only on incapacity. It was entitled to dismiss the applicant ‘for his incapacity to perform his job where such incapacity [was] due to persistent absence from work because of genuine ill health’ (per Tebbutt J in Hendricks v Mercantile and General Reinsurance Co of SA Ltd (1992) 15 ILJ 304 (LAC) at 312I–J). The test for substantive fairness was stated by Tebbutt J at 313A–D to be the following:

‘The substantive fairness of the dismissal depends on the question whether the employer can fairly be expected to continue the employment relationship bearing in mind the interests of the employee and the employer and the equities of the case. Relevant factors would include inter alia the nature of the incapacity; the cause of incapacity; the likelihood of recovery, improvement or recurrence; the period of absence and its effect on the employer’s operations; the effect of the employee’s disability on other employees; and the employee’s work record and length of service.’”’

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)?