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Article 6/2026

LabourEdge

In line with the anticipated changes to the LRA and the BCEA, it is vitally important that practitioners appreciate what, firstly, their preparation and, secondly, their representation at the CCMA or bargaining council will entail if these changes go through.

What are the aspects that practitioners need to be aware of if these anticipated changes need to become law?

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Practitioners need to upskill their preparation and representation before the CCMA or bargaining council in respect of the following:

  • dealing with a request for the postponement of arbitration that will attract a ruling made by a commissioner that the party is to pay the CCMA fee
  • the effect of an arbitration award to be treated as an order of a magistrate’s court, or the labour court
  • the consequences of the anticipated provision that a fair procedure relating to dismissal, as set out in the LRA and amplified in the Code, is subject to an applicable collective agreement
  • the consequences of the requirement of substantive and procedural fairness not applying to new employees
  • the new protocols relating to an enquiry by an arbitrator
  • the commencement of arbitration immediately after certifying the dispute remains unresolved
  • the jurisdiction of the CCMA and bargaining council dealing with automatically unfair dismissals in terms of s187(d), s187(e) and s187(f) – a distinction between employees earning below and above the threshold in terms of s6(3) of the BCEA is also of relevance
  • the fact that reinstatement or re-employment is not applicable to an employee who earns more than the threshold determined ito s208B of the LRA (currently, R1.8m), unless the dismissal is automatically unfair
  • the new maximum anticipated compensation for unfair dismissals
  • the new maximum anticipated compensation for unfair labour practices
  • the limitation on an employee to institute a claim, arising from the same facts, based on an unfair dismissal, as well as an unlawful dismissal – and the obvious consequence that this is not applicable to unfair labour practices
  • the extended jurisdiction of the CCMA to deal with disputes concerning whether there has been compliance with the collective agreement – seeing that currently such jurisdiction is limited to the interpretation or application of a collective agreement and does not include its enforcement
  • the jurisdiction of the CCMA to undertake dispute resolution in terms of the newly statutorily-created category of employees, namely, on-call employees
  • the extended jurisdiction of the CCMA and bargaining councils to deal with any disputes regarding the entitlement of severance pay and not merely the application of s41 of the BCEA. This is particularly relevant in view of the approach that an employer is entitled, in circumstances where it assisted the employee to be retrenched in finding alternative employment, not to pay severance pay – with specific reference to Khanya Cleaning Group (Pty) Ltd v SA Transport and Allied Workers Union (2025) 36 SALLR 448 (LC)
  • the jurisdiction of the CCMA when, on good cause shown, an employer refers a dispute to the CCMA, outside the period within which it has to comply with a compliance order, to condone such late referral
  • the jurisdiction of the CCMA to deal with the employer’s failure to pay a contribution to a benefit fund on behalf of an employee
  • the jurisdiction of the CCMA when an employer fails to pay contributions to funds falling under the Pension Funds Act
  • the jurisdiction of the CCMA to deal with the extended definition of an employee in terms of s3(4)(a) of the BCEA Amendment Bill
  • the steps to be undertaken by a commissioner to determine whether the termination of a fixed-term contract amounts to a dismissal
  • the jurisdiction of the CCMA in terms of s198D of the LRA, dealing with the interpretation or application of s198A, s198B and s198C – after a declaratory order has been obtained from the CCMA or bargaining council in the above regard, the employee is not entitled to relief as part and parcel of the s189D process, but must claim relief separately
  • the rules regulating reinstatement/re-employment as the appropriate remedy, the burden of proof so applicable and the elements of the ‘test’ in this regard to be complied with

From the above, it is apparent that, if the anticipated changes to the LRA and the BCEA are indeed promulgated, there are a number of new and additional issues that practitioners will need to get to grapple with.

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)?