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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.
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?