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Article 8/2022

Is there a difference between an organ of state, such as a municipality, offering employment to settle a claim and an employer in an unfair dismissal dispute offering such a settlement?

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In Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the following approach was adopted:

  • the municipality argued that it was ‘not really’ making an appointment but legitimately settling a claim
  • the high court held that it was not correct that the municipality could rely on a transfer policy, seeing that it was only applicable to employees in the employ of the municipality and Erasmus (seeing that she had resigned) was not an employee at the stage the offer was made – this is different from settling a dismissal matter by means of reinstatement because reinstatement does not entail the conclusion of a fresh contract of employment
  • furthermore, it was held that an organ of state is not entitled to fill vacancies for ulterior purposes, such as the settling of litigation
  • consequently, it was further held that an agreement reached by Erasmus to fill a vacancy would not pass constitutional muster, would be contrary to public policy and thus unenforceable (Corruption Watch NPC and Others v President of the Republic of South Africa; Nxasana v Corruption Watch NPC and Others 2018 (10) BCLR 1179 (CC), at paragraph [29])
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)?