Skip to main content

Article 48/2024

LabourEdge

What is the test to be applied when unfair discrimination is alleged on a listed ground in terms of s6(1) of the EEA?

_____________________________________

  • The answer to the above entails the test as set out in s11(1) of the EEA.
  • Step 1 entails that the employer must identify the specific listed ground and, if the employee fails to do so, the matter does not proceed to step 2.
  • Step 2 entails the employer discharging the onus on it to prove, on a balance of probabilities:
    • that the discrimination, as alleged, did not take place, or
    • if the discrimination did take place, that same is rational and not unfair or otherwise justifiable
    • if the employer discharges this onus, then the claim is dismissed for being bad in law – on the other hand, if the onus is not discharged, unfair discrimination on the listed ground has been established
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?