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Article 77/2022

The content of the term ‘another arbitrary ground’ in terms of s6(1) of the EEA

Does a collective agreement, concluded in a bargaining council regulating conditions of service of employees, constitute administrative action reviewable in terms of the Promotion of Administrative Justice Act 3 of 2000?

How did the labour appeal court recently interpret the phrase ‘any other arbitrary ground’ contained in s6(1) of the Employment Equity Act 55 of 1998?

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The labour appeal court, in Minister of Justice and Correctional Services and Others v Ramaila and Others (2021) 32 SALLR 15 (LAC); (2021) 42 ILJ 339 (LAC), in considering the above issues, adopted the following approach:

  • first, whether Ramaila’s claim of unfair discrimination ‘on any other arbitrary ground’ was justiciable under s6(1) of the Employment Equity Act 55 of 1998 (‘EEA’) – s6(1) of the EEA provides that:

‘No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground.’

  • the labour appeal court has recently, in Naidoo and Others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC), dealt comprehensively with the construction to be placed on the phrase ‘any other arbitrary ground’ as set out in 6(1) of the EEA
  • the fundamental question before the court in Naidoo was whether a ‘narrow’ or a ‘broad’ interpretation of the compass of the phrase ‘any other arbitrary ground’ should prevail. The distinction suggested, on the one hand, that the compass is limited to a ground which is analogous to the listed grounds, and on the other, posited conduct required to be arbitrary, in the sense of being ‘capricious’
  • the labour appeal court (after a careful examination of the jurisprudence of the constitutional court decisions of the labour appeal court and the labour court and some academic writings) endorsed a narrow compass interpretation thereof. It held that the expression was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of s6
  • the prohibition which the equality provision in the Constitution, and by parity of reasoning the EEA, is directed at is the differentiation which impairs the fundamental dignity of human beings or in some other way affects persons adversely in a comparably serious manner (Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC), at paragraph [331])
  • what is instructive from Naidoo (supra) is that the insertion of the word ‘other’ supports the conclusion that the phrase ‘any other arbitrary ground’ was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of s6. Being a newcomer in the public service, or ‘newness’, as Ramaila termed it, as an attribute which he argued was used by the appellants to differentiate him, is far removed from any of the specified grounds or any ground akin or analogous to them
  • based on the facts of the case, the labour appeal court concluded that so-called ‘newness’ in the public sector differentiating employees is far removed from any of the specified grounds or any grounds akin or analogous to them, resulting in the applicant having failed to discharge the required onus
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)?