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 2, 2025

What alternative claim(s) exist in delict to a statutory automatically unfair dismissal, a statutory constructive dismissal and a statutory unfair discrimination claim?

September 2, 2025

The scenario is as follows: in terms of a collective agreement between an employers’ organisation and various trade unions, provision is made for the accreditation of medical schemes by the relevant bargaining council, so that employees may enjoy the benefits of selecting and joining a scheme to which their employers contribute.

August 26, 2025

The labour court is afforded jurisdiction ito s77(1), read with ss77(3), of the BCEA to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of contract.