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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 28, 2026

What are the principles governing common purpose misconduct?

September 21, 2026

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

September 14, 2026

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.