Skip to main content

Article 48/2025

The labour court has stated ad nauseam that its jurisdiction does not extend to all labour matters and that an applicant must necessarily identify the statutory provision(s) that confers jurisdiction on the labour court in the matter concerned. Van Niekerk J recently, in SA Medical Association Trade Union obo Rikhotso v Member of the Executive Council, Department of Health, Limpopo Province and Others (2023) 34 SALLR 354 (LC), had the opportunity to again deal with the lack of general jurisdiction of the labour court in labour matters – what approach was followed and what are the ‘take away’ principles in this regard?
_____________________________________

  • In Baloyi v Public Protector and Others [2020] ZACC 27; 2021 (2) BCLR 101 (CC); [2021] 4 BLLR 325 (CC); (2021) 42 ILJ 961 (CC); 2022 (3) SA 321 (CC) (Baloyi), the constitutional court said the following:
    • ‘[23] The legislation in terms of which an assignment would be made in the context of the present matter is the LRA. Section 157(1) of the LRA provides for the exclusive jurisdiction of the labour court in all matters that – in terms of the LRA or other law – are to be determined by the labour court. In doing so, it fulfils one of the stated purposes of the LRA, which is to establish the labour court and the labour appeal court as superior courts, with “exclusive jurisdiction to decide matters arising from the Act”. Section 157(1) reads: “Subject to the Constitution and section 173, and except where this Act provides otherwise, the labour court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the labour court.”’
  • Section 68(1), s77(2)(a), s145 and s191 of the LRA proffer examples of matters that ‘are to be determined by’ the labour court and are, therefore, by virtue of s157(1), within the exclusive jurisdiction of the labour court.
  • The labour court has, moreover, found that the high court’s jurisdiction in respect of employment-related disputes is ousted only where the dispute is one for which the LRA creates specific remedies, including, for example, unfair dismissal disputes:
    • ‘[24] Crucially, section 157(1) does not afford the labour court general jurisdiction in employment matters…’ (Baloyi)
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)?