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Article 8/2025

What are some of the more important considerations when determining compensation for procedural and substantive unfairness being present?

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With reference to Liebowitz v Fernandes (2002) 23 ILJ 278 (LAC), the constitutional court, in McGregor v Public Health and Social Development Sectoral Bargaining Council (2021) 32 SALLR 33 (CC), adopted the following approach in determining compensation in terms of s193(1)(c), s194(1) and s194(3) of the LRA when substantive unfairness is present in a dismissal :

  • the nature and extent of the misconduct is an important factor – e g continuing late coming is to be treated differently from, for instance, sexual harassment
  • consideration should also be paid to the attitude of the employee
  • if the misconduct is serious, notwithstanding procedural unfairness, compensation should not be awarded or, alternatively, it should be limited substantially

In the above judgment, the constitutional court adopted the following approach in determining compensation when the dismissal is procedurally unfair :

  • the most important factor to be considered is the degree of deviation from the required procedural fairness yardstick
  • if the degree of deviation is insignificant, same would lead to a small potential influence on the amount of compensation
  • on the other hand, if the degree of deviation is significant, same will have a greater potential influence on the amount of compensation
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)?