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Article 5/2025

Practitioners find it difficult to appreciate the fact that a reinstatement order does not, in itself, reinstate an employee.

What are some of the considerations underpinning the said approach?

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With reference to Kubeka v Ni-Da Transport (2021) 32 SALLR 14 (LAC), the constitutional court, in NUM obo Fohlisa v Hendor (2017) 28 SALLR 2 (CC), adopted the following approach when dealing with the consequences of a reinstatement order :

  • a reinstatement order does not restore the employment contract
  • a reinstatement order directs the employee to tender services and directs the employer to accept such tender – it is thus the employer that reinstatements the employee and not the CCMA or the labour court
  • if the employee tenders services and the employer refuses to accept such tender, there is no restoration of the employment contract – in order to ensure compliance with the reinstatement order, the employee is required to institute contempt proceedings (an order ad factum praestandum)
  • on the other hand, if the employee fails to tender his/her services, the employment contract is not restored – in such circumstances, the employee is not able to claim relief in terms of the reinstatement order
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)?