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Article 5/2022

Does sexual harassment fall within the protection provided to an employer in terms of the Compensation for Occupational and Diseases Act 130 of 1993 (‘COIDA’)?

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Once the employee in the high court, in Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), proved that she had been sexually harassed and that her employer was vicariously liable for such delict, the municipality made application for leave to appeal, holding that the relief claimed had not been competent in the first place, seeing that Erasmus was obliged to pursue her remedies in terms of COIDA.

In terms of s35 of COIDA, an employee or dependent of an employee is not entitled to recover damages in respect of any occupational injury or disease resulting in the disablement or death of such employee, against such employee’s employer.  The high court further held as follows:

  • in refusing the application for leave to appeal on the basis that sexual harassment does not fall within the definition of accident arising out of and in the course of employment, it was further held that a strong message was to be sent to employers that they would be liable for the failure to protect the employees within the context of sexual violence
  • the court followed the approach as already dealt with in previous articles, with reference to Churchill v Premier of Mpumalanga and Another (2021) 32 SALLR 27 (SCA) [Article 2/2022]
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?