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Article 56/2022

The labour appeal court recently, in Department of Rural Development and Agrarian Reform; Eastern Cape v General Public Service Sectoral Bargaining Council and Others (2020) 31 SALLR 150 (LAC); (2020) 41 ILJ 1321 (LAC), confirmed that, in respect of the non-promotion of an employee, interference by an arbitrator or the court is limited to very specific circumstances.  On what basis did the court make such a finding?

In the scenario where a preferred candidate for promotion did not take up the offer and the second best candidate was not so appointed, what are the considerations justifying the appointment and instatement into such post in respect of the second best candidate, as opposed to being awarded compensation?

Generally, there is no right to promotion and arbitrators and courts should hesitate before appointing an aggrieved employee to a post.  On what basis did the labour appeal court recently find that such deference would be less compelling where the employer has unfairly discriminated against the employee or acted otherwise egregiously?

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Murphy AJA (with Davis JA and Sutherland JA concurring), adopted the following approach in Department of Rural Development and Agrarian Reform (supra) in dealing with the above issues:

  • a decision on the merits of an unfair labour practice dispute stands to be reviewed in the light of whether it is one that no reasonable commissioner could reach.  The essential question for determination in this appeal, therefore, was whether the arbitrator’s finding, that the department’s omission to promote Musisi had been unfair and his deeming it reasonable to order the promotion, had been unreasonable
  • the department’s contention that restraint and deference were called for was not entirely misplaced, though somewhat overstated in the context of this case.  Courts and arbitrators should be reluctant to interfere with an employer’s decision to refuse promotion.  They will do so only when the decision or reasoning is assailable because there is evidence that the employer acted on the basis of some unreasonable, irrelevant or invidious consideration, or the decision was arbitrary, capricious or unfair, or the employer failed to apply its mind to the promotion or acted in bad faith (SA Police Service v Safety and Security Sectoral Bargaining Council and Others [2016] JOL 35883 (LC), at paragraph 41.3)
  • but equally, where there is no rational relationship between the decision not to promote, the purpose of the promotion and the information upon which the impugned decision is based, interference with the decision will be justified.  Because there is ordinarily no right to promotion, arbitrators and courts should hesitate before appointing the aggrieved employee to the post.  Such deference, however, will be less compelling where the employer has unfairly discriminated against an employee or acted otherwise egregiously.  Likewise, the remedy of instatement might be appropriate where it will cause no prejudice to another successful candidate because the post is vacant; or the employee proves that, but for the unfair conduct, he or she would have been appointed
  • in conclusion, the labour appeal court found that there was no basis for the labour court to interfere with the arbitrator’s finding and he had not erred in this regard – the aggrieved employee had been the only candidate eligible and suitable for appointment
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)?