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Article 52/2021

Labour Edge

How did the labour court recently, in Mahle Behr SA (Pty) Ltd v National Union of Metalworkers of SA and Others; Foskor (Pty) Ltd v National Union of Metalworkers of SA and Others (2019) 30 SALLR 173 (LC), deal with the pre-strike ballot requirement?

  1. the respondents’ second argument was premised on what they suggested was an issue related to the interpretation of the section. The respondents suggested that the section should be interpreted to mean that the transitional provisions would only apply after the registrar had issued the directive and before there was compliance with the directive;
  2. in interpreting statutes, the court is required to apply the accepted canons of interpretation. In this matter, the labour court was of the view that the provisions of s19 were clear and unambiguous and the court was obliged to give effect thereto;
  3. the purpose of the legislation is clear in that its purpose, inter alia, is to provide that, before a union may engage in a strike, it should conduct a secret ballot of its members. In addition to this provision, and to regulate the interim position, the transitional provisions require the holding of a secret ballot by a union (and employers’ organisation in respect of a lockout) prior to engaging in a strike. The requirement is peremptory and applies only to registered trade unions that do not include in their constitution the requirement of a ballot;
  4. to interpret the section as not applying to the respondents negates any suggestion that the transitional provisions will apply in the interim pending compliance; and
  5. that being so, the labour court was satisfied that the transitional requirements applied to those unions whose constitutions do not provide for ‘recorded and secret ballots’ and that, in the interim, prior to complying with the requirements relating to a secret ballot, they ‘must conduct a secret ballot of members’ before engaging in a strike.
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)?