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Article 6/2025

If the dismissal of the employee is found to be substantively unfair, how is the period of reinstatement to be calculated? If the dismissal of the employee is found to be substantively unfair, how is the amount of back pay to be calculated?

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The constitutional court, in Moroveke v Talana NO (2021) 32 SALLR 34 (CC), had this to say in respect of the question as to the period of reinstatement :

  • when determining such period, the factor to be considered is the period of unemployment – i e if the unfairly dismissed employee was only unemployed for two months, the period of reinstatement should be limited to this period of unemployment
  • the purpose of the reinstatement order should be to achieve the above objective and not be utilised to enrich or impoverish the employee

See, further, Toyota SA Motors v CCMA (2016) 37 ILJ 313 (CC)

In the above matter, the constitutional court had the following to say as to the amount of back pay:

  • in dealing with this issue, the factor to be considered is the amount that the employee was ‘out of pocket’ during the period of unemployment – if the employee was out of pocket to the extent of R100.00, then this should be the amount of back pay
  • the purpose of back pay is to make good the employee’s loss and not to punish the employer
  • in essence, back pay should reflect the difference between the amount that the employee would have earned, and indeed earned, during the period of unemployment

See, further, Davids v Boland Rugby [2011] ZALCCT 69

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)?