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Article 80/2021

Labour Edge

In respect of an order of reinstatement, what is the nature of the claim calculated from the day of the order granting reinstatement to the end of the judicial process challenging such order?

In respect of the so-called ‘second period’, calculated from the day after the judgment granting such order to the outcome of the judicial process challenging such order, the labour court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2019) 30 SALLR 178 (LC), adopted the following approach:

  1. the court, in National Union of Metalworkers of SA obo Fohlisa and Others v Hendor Mining Supplies (2017) 38 ILJ 1560 (CC), had been evenly split on whether the debt incurred in respect of the second period had not perhaps been a contract debt. Madlanga J had viewed it as an artificial line to draw but Zondo DCJ, writing the second judgment, had found that, after the noting of an appeal, and until all appeals were exhausted, the portion of back pay occasioned by such a delay constituted a contractual debt. One of Madlanga J’s criticisms of this approach of Zondo DCJ was that it carved up the period during which there was non-compliance with the labour court’s order into separate periods that gave rise to different legal consequences;
  2. the ability to generate separate legal consequences, with respect, recommended the approach of Zondo DCJ to the labour court in casu. Accepting that an order in respect of the first period did not sound in money, could it not perhaps be that back pay associated with the second period, as a quantifiable contractual debt, did?;
  3. it is important to record that this matter was not about whether the applicants had been, at a colloquial level, entitled to the full amount of back pay for both the first and second periods. They plainly had been. However, the respondent had taken the point that the applicants had erred in not using the correct legal process to achieve the outcome which, barring the liquidation of the respondent, had otherwise been theirs for the taking. The labour court had considered whether, if, in terms of the second judgment in Hendor, claims for arrear wages for the second period were contractual debts, these amounts could not be claimed under s77(3) of the BCEA; and
  4. if one scanned Zondo DCJ’s views in the second judgment more widely, however, it appeared to him that contractual debts in respect of the second period only became due after the employer had reinstated the dismissed employees; and
  5. the labour court believed that there was simply no way of getting around the fact that the applicants had used the wrong process to obtain the relief they sought.

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)?