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Article 50/2024

LabourEdge

What is the test for unfair discrimination formulated in Harksen v Lane and consistently applied subsequently by the various courts, including, recently, Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU (2022) 33 SALLR 277 (LC); (2022) 43 ILJ 1584 (LC)?

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Step 1

  • Step 1 entails answering the question as to whether the act or omission differentiates between people or categories of people – a negative answer means that no discrimination has taken place and a positive answer permits the investigation to move to step 2.

Step 2

  • This step entails answering the question as to whether or not the differentiation amounts to discrimination.
  • If the differentiation is on a listed ground, discrimination has been established.
  • On the other hand, if the discrimination is on a non-listed ground, such ground must show attributes or characteristics with the potential to impair human dignity or affect human beings adversely in a comparably serious manner – if same is established, discrimination exists and, if same is not established, then no discrimination exists.

Step 3

  • This step entails answering the question as to whether or not the discrimination is unfair.
  • If the discrimination is on a listed ground, unfairness is presumed – unless the employer proves fairness.
  • If the discrimination is on a non-listed ground, unfairness is to be established – the test is the impact of the discrimination on the complainant and others in a similar position (if there is compliance with the test, then unfair discrimination has been established, but, on the other hand, if there is non-compliance with the test, fair discrimination exists).
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)?