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Article 6/2022

What factors are to be taken into account to determine whether or not an offer of alternative employment is lawful, as opposed to fair?

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In the Erasmus judgment [Article 4/2022], the employee rejected the offer of employment for, inter alia, the following reasons: it could not be expected of her to return to work after being treated the way she had been treated by her employer, she feared that she would not be able to cope with the work when returning, the perpetrator was still in a position of power in the municipality and, lastly, the people aligning themselves with the perpetrator indicated their dislike of her.

The high court, in essence, held that the same principles applicable in the labour law environment would also be applicable here within the delictual environment and entailed, amongst other things, that, if the employer created an intolerable environment, it was not lawful to expect the employee to mitigate her losses by returning to such intolerable environment.

It, furthermore, had to be determined whether or not the offer made by the municipality amounted to an impermissible circumvention of its recruitment procedures.

In Khanyile v Minister of Education and Culture, KwaZulu–Natal and Another (2006) 27 ILJ 769 (N), it was held that an appointment contrary to applicable statutory requirements is unlawful – an application of this process requires the following question to be determined: whether the reservation of a post on its organigram for Erasmus, for the purposes of settling a claim for future loss of earnings, contravenes the municipality’s recruitment policies and is, thus, unlawful?

With reference to s195 of the Constitution and s51 and s67 of the Local Government Municipal Systems Act 32 of 2000 (‘the Systems Act’), the municipality in casu sought to ensure fair and proper placement of municipal employees on its organigram by a placement policy and a relocation policy – both having been approved by the council of the municipality.

The following is a summary of such principles applicable to both placement and relocation: (i) posts will first be advertised internally and internal candidates will be given preference; (ii) in exceptional circumstances, where it is critical for service delivery and where specialised skills are required and no suitable internal candidates exist, posts will be advertised externally so that members of the public can apply; (iii) should there be no suitable applicants internally, other applicants may be considered in terms of normal selection/promotion criteria; (iv) approval of external filling of vacancies are to be obtained from the placement committee.

In terms of Khanyile, appointments in contravention of policies would be ultra vires and invalid (a municipality, as organ of state, has no authority to disregard its own policies).

The consequence of unlawful or unfair placement are as follows: (i) an aggrieved external candidate can claim that the appointment was unlawful in terms of PAJA; (ii) an internal candidate could claim that the failure to appoint constitutes an unfair labour practice; (iii) any person with locus standi can apply to have the settlement agreement set aside.

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)?