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Article 83/2021

Labour Edge

In terms of s142A(2) of the LRA, the CCMA has the power to make a settlement agreement an arbitration award for the purpose of enforcement thereof, in terms of s143(1) of the LRA.  On the other hand, in terms of s158(1)(c) of the LRA, the labour court may make an arbitration award or any settlement agreement an order of court.  What are some of the differences between the approaches adopted in the aforesaid statutory provisions, recently identified by the labour court in National Union of Metalworkers of SA obo Kubane and Others v Kewberg Cables and Braids (Pty) Ltd (2019) 30 SALLR 218 (LC)?

In Kewberg Cables, the following was stated:

  1. the labour appeal court, in Fleet Africa (Pty) Ltd v Nijs (2017) 38 ILJ 1059 (LAC), however, sought to draw a clear distinction between s142A and s158(1)(c) in this proper context, where the court said the following:

‘[25]   The distinction between s158(1A) and s142A(1) is obvious. There is no way that these two amendment provisions can or should be read together as if they are mutually inclusive. Whilst, on the one hand, s158(1A) is concerned with the labour court making “any settlement agreement” an order of the court, on the other, s142A(1) pertains to the situation where the CCMA makes any “settlement agreement” an arbitration award. In other words, s142A(1) merely adds to the powers of the CCMA; whilst s158(1A) elaborates on the powers of the labour court in terms of s158(1)(c).’;

  1. the above dictum in Fleet Africa illustrated that proceedings before the CCMA under s142A are based upon a different cause of action to proceedings before the labour court under s158(1)(c) of the LRA. The one cannot operate to the exclusion of the other. In any event, it is all about enforcement. Section 142A leads to s143 and enforcement of the settlement agreement like it was an order of the labour court;
  2. s158(1)(c) leads to enforcement of the settlement agreement as an actual order of the labour court; and
  3. either way, enforcement of the payment of a monetary amount is done by way of execution through the sheriff, and enforcement of an obligation to act is done by way of contempt proceedings in the labour court. The only similarity between the two provisions is the enforcement aspect, but the basis giving rise to competent enforcement is different.

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)?