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Article 73/2021

Labour Edge

In Thaver v Pick ‘n Pay Retailers (Pty) Ltd (2020) 41 ILJ 2655 (CCMA), the employee’s attorney signed the referral form to arbitration (LRA Form 7.13) before the issue of legal representation had been canvassed (neither had the parties agreed to legal representation nor had an application for legal representation been determined by the CCMA at such stage).  Does the CCMA have the requisite jurisdiction to arbitrate an alleged unfair dismissal dispute in such circumstances?

In Pick ‘n Pay Retailers, the CCMA, per Commissioner Grobler, dealt with this issue as follows:

  1. in the matter of Adams v National Bargaining Council for the Road Freight and Logistics Industry and Others (C700/16) [2018] ZALCCT 36 (7 September 2018), the labour court was called upon to review a jurisdictional ruling issued by a commissioner that the said bargaining council lacked the necessary jurisdiction to determine a dispute at conciliation in circumstances where the applicant’s attorney had signed and submitted the LRA form 7.11 (as well as the LRA form 7.13);
  2. while it is trite that legal representation is not permitted at conciliation, the labour court went further when it analysed the rules which regulate proceedings at the bargaining council. The court opined that the NBCRFLI rule 27 was almost word for word the same as CCMA rule 25, that is, that legal representation is not automatically granted in instances where an employee was dismissed for misconduct or capacity;
  3. it is not in dispute that the applicant in casu was dismissed for misconduct;
  4. the court, per Snyman AJ, then turned its attention to the dictionary meaning of the word ‘entitled’ which appeared in the NBCRFLI rules, as well as in CCMA rule 25(1)(c), before it held, at paragraph [24] of the judgment, that:

‘The dictionary definition of “entitled” is “having the right or permission to do something”, or the “enforceable right to claim something”.  Synonyms for the word in this context are “qualified” or “authorised”.  Considering these definitions, the applicant does not have the enforceable right to be represented by Rossouw, who in turn would not be authorized to represent the applicant.  Simply put, Rossouw is not entitled to represent the applicant, and as such cannot sign the dispute referral forms.’;

  1. thereafter, the court, accordingly, held, at paragraph [23]:

‘It follows that, applying the above considerations, and conducting a textual, logical and common sense reading of the NBCRFLI Rules, the applicant’s attorney, Rossouw, was not “entitled” to represent the applicant in either of the conciliation or arbitration proceedings.’; and

  1. consequently, the CCMA held that it lacked the requisite jurisdiction to arbitrate the matter.

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)?