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Article 49/2024

LabourEdge

What is the test to be applied to determine whether or not unfair discrimination has been established, where same is alleged on an arbitrary ground?

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  • Pioneer Foods (Pty) Ltd v Workers Against Regression (2016) 37 ILJ 2872 (LAC); (2016) 27 SALLR 125 (LC) identified s11(2) of the EEA as providing the required answer to the aforesaid issue.
  • In terms of such statutory provision, the complainant must prove, on a balance of probabilities that:
    • the conduct is not rational and
    • the conduct amounts to discrimination and
    • the conduct is unfair

(see, further, Prinsloo v Van der Linde 1997 (3) SA 1012 (CC)

  • If the complainant discharged the above onus, then unfair discrimination on an arbitrary ground has been established – on the other hand, if the onus is not discharged, the claim is dismissed for being bad in law.
September 7, 2026

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

August 31, 2026

What is the difference between desertion and abscondment?

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?