Skip to main content

Article 48/2024

LabourEdge

In the scenario where an employer incorrectly increases employees’ salaries and car allowances, are the employees entitled to approach the high court to determine whether or not the employer’s subsequent action in reversing such increases amounts to a breach in terms of s34 of the BCEA?

_____________________________________

  • The high court, in Ngcangula v Mhlontlo Local Municipality and Others; Nqekeho v Mhlontlo Local Municipality and Others (2022) 33 SALLR 267 (ECM); [2022] 12 BLLR 1177 (ECM), adopted the following approach:
    • in terms of s34 of the BCEA, the employer may not make any deduction from an employee’s remuneration unless:
      • the employee, in writing, agrees to the deduction in respect of the debt specified in an agreement, or
      • the deduction is permitted in terms of law, collective agreement, court order or arbitration award
    • in terms of s34(2) of the BCEA, a deduction made, in terms of s34(1)(a), is to reimburse the employer for loss or damage, only if:
      • the loss or damage occurred during the course of employment and due to the fault of the employee
      • the employer followed a fair procedure and gave the employee a reasonable opportunity to show why the deduction should not be made
      • the total amount of debt does not exceed the actual amount of loss or damage
      • the total deductions from the employee’s remuneration do not exceed one-quarter of the employee’s remuneration in money
    • it is also worthy to refer to s34(5) of the BCEA, that indicates that an employer may not require or permit an employee to repay any remuneration, except for overpayments resulting from an error in calculating remuneration
    • in casu, the employees based their claim on their contractual rights and the employer relied on s34(1) and s34(2) of the BCEA to justify its action
    • according to the labour court, the employer, in casu, was not able to place any reliance on a provision of law, collective agreement, court order or arbitration award
    • the civil courts and the labour court have concurrent jurisdiction to determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of the BCEA – with reference to Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC), the high court in casu held that it had jurisdiction to determine the labour dispute concerning the aforementioned contractual rights, dealing with the deduction from the employees’ remuneration already paid to them – the high court, in conclusion, found that the deductions from the employees were in breach of s34(1) of the BCEA (it was also found that the deductions constituted unfettered self-help by the state, taking the law into its own hands and, therefore, constituting a violation of s1(c) of the Constitution of the Republic of South Africa.

See, further, North West Provincial Legislature v National Education, Health and Allied Workers Union (2023) 34 SALLR 81 (LAC).

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)?