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Article 7/2022

Under which circumstances can an organ of state, such as a municipality, offer employment to an aggrieved employee to settle a delictual claim?

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In Erasmus v Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the high court followed the following approach:

  • in Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 (LAC), the labour appeal court held that a court may exercise its discretion not to award compensation if: (i) the employer had already provided the employee with substantially the same kind of redress; or (ii) the employer’s ability and willingness to make that redress is frustrated by the conduct of the employee
  • the aforesaid principles should equally be applicable in the civil law environment;
  • the employer is required to, most importantly, establish its bona fides in making an offer of reinstatement, entailing that it must not be an attempt to merely implement damage control
  • generally, an offer of reinstatement will be acceptable to cure or remedy procedural defects but not substantive unfairness – however, this is not an immutable rule – Rawlins v Dr DC Kemp t/a Centralmed [2011] 1 All SA 281 (SCA)
  • had Erasmus pursued an unfair dismissal dispute: (i) she would have been entitled to refuse the offer on the basis that the employment relationship had broken down, (ii) her dismissal had been substantively unfair, and (iii) the offer constituted an attempt at damage control – these considerations are equally applicable in casu, dealing with a delictual claim
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)?