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Article 7/2024

LabourEdge

Is it permissible for an employer, when misconduct occurs, to dismiss employees on the basis of operational requirements?

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  • Both the labour appeal court (e g Chauke v Leeson Motors (1998) 19 ILJ 1441 (LAC)) and the labour court (SAMWU v City of Cape Town (2011) 22 SALLR 145 (LC)) have considered whether it is permissible for an employer to dismiss employees on the basis of an operational rationale for collective misconduct.
  • From the aforesaid judgments, it is apparent that, subject to certain safeguards to be implemented and rather tricky questions to be answered, it is permissible to dismiss a group of employees if misconduct is proven but the actual perpetrators not pinpointed.
  • The justification for such dismissal, on the basis of a commercial rationale, has been formulated as follows: ‘The necessity to save the life of the enterprise.’ – apparently, on this basis, the dismissal of innocent workers is justified.
  • n the Cashbuild judgment, the labour appeal court specifically makes reference to the difficulties to be encountered by following the above approach, as set out, inter alia, in FAWU v Premier Foods (2012) 33 ILJ 1779 (LAC) – in brief, these difficulties entail the application of the principles relating to a fault (i e misconduct) scenario to a faultless (i e no intention or negligence) scenario, being dismissal for operational requirements; and the factors to be taken into account in determining and applying the selection criteria justifying the dismissal of the innocent employees.
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)?