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Article 5/2023

Throughout an employee’s career, spanning approximately 40 years, he worked around noisy, heavy machinery. Following a hearing assessment when he was 59, he was declared to be permanently unfit for his normal duties due to noise-induced hearing loss. He was, therefore, forced to retire permanently before the age of 65.

What is the content of the presumption entailing that such noise-induced hearing loss took place in the course of the employee’s employment?

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In Knoetze v Rand Mutual Assurance (2022) 33 SALLR 4 (DGJ), it is submitted that the high court
followed the following correct approach:

  • s65(1) of COIDA contemplates two kinds of diseases:
    • a disease mentioned in the first column of Schedule 3 (a listed occupational disease) and
    • a disease other than a disease contemplated as a listed disease (a so-called non-listed
      disease)
  • hearing impairment (being a listed occupational disease), in terms of s66 of COIDA, is presumed
    to have arisen out of and in the course of employment unless the contrary is proven (which, in
    casu, could not be proven by Rand Mutual Assurance, licensed for assessing and making
    payment of claims for compensation)

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)?