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Article 8/2024

LabourEdge

The constitutional court, in NUMSA v Marley Pipe Systems (2022) 33 SALLR 22 (CC), indicated, in no uncertain terms, that the labour appeal court in this matter incorrectly created various principles, including the following:

  • to escape guilt in respect of common purpose, a bystander has to take positive steps to disassociate himself/herself from the act of the actual perpetrator
  • to escape guilt in respect of common purpose, the bystander is required to intervene and protect

By utilising the approach adopted in criminal law in S v Mgedezi 1989 (1) SA 687 (A) and taking into account the requirements for derivative misconduct formulated by the constitutional court in the Dunlop Mixing judgment, what are the current principles to be identified regulating collective misconduct within the common purpose environment?

By utilising the approach adopted in criminal law in S v Mgedezi 1989 (1) SA 687 (A) and taking into account the requirements for derivative misconduct formulated by the constitutional court in the Dunlop Mixing judgment, what are the current principles to be identified regulating collective misconduct within the common purpose environment?

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  • The first fundamental principle to appreciate is that what has been stated by the constitutional court in the Dunlop Mixing judgment pertaining to derivative misconduct (Article 6/2024) is equally applicable to the application of the common purpose doctrine.
  • The second fundamental principle to appreciate is that what the constitutional court stated about the requirements for obtaining an interdict so applicable to bystanders (Oak Valley Estates judgment – Article 3/2024) is not applicable to either the common purpose doctrine or derivative misconduct.
  • In short, in order to find an employee guilty of common purpose misconduct, evidence (direct or circumstantial) is required to prove:
    • association with the misconduct (before, during or after)
    • a shared common purpose with the perpetrator by himself/herself performing some act of association
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)?