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Article 85/2021

Labour Edge

The institution of review proceedings does not suspend the operation of an arbitration award unless security is furnished to the satisfaction of the court in terms of s145(8) of the LRA.  On what basis did the labour appeal court recently resolve the conflict between various labour court judgments interpreting the stay of enforcement of arbitration awards pending review proceedings?

In City of Johannesburg v Municipal Workers Union obo Monoreng and Another (2019) 30 SALLR 159 (LAC), the labour court ruled as follows:

  1. the labour court has a discretionary power under s145(3) of the LRA to stay the enforcement of an arbitration award pending its decision in the review application. It may stay the enforcement of an arbitration award pending finalisation of a review application against the award with or without conditions. It may, in terms of s145(8) of the LRA, dispense with the requirement of furnishing security. Properly construed, s145(3) read with s145(7) and s145(8) should be interpreted to mean that, where an applicant in a review application furnishes security to the labour court in accordance with s145(8) of the LRA, the operation of the arbitration award is automatically suspended pending its decision in the review application. In other words, the employer need not make an application in terms of s145(3) of the LRA to stay the enforcement of the arbitration award pending the finalisation of the review application;
  2. however, should the employer wish to be absolved from providing security or to provide security in an amount less than the threshold in s145(8)(a) and s145(8)(b), then it is required to make an application to the labour court, in terms of s145(3), for the stay of the enforcement of the arbitration award pending its decision in the review application. The employer must make out a proper case for the stay as well as for the provision of security in accordance with s145(8) to be dispensed with or reduced;
  3. the words ‘unless the labour court directs otherwise’ in s145(8) of the LRA must be construed broadly to mean that the labour court is afforded a discretion to either:
    • exempt the employer from paying security on the stay of the enforcement of an arbitration award pending its decision on review; or
    • reduce the quantum of security to be furnished by the employer to an amount below the threshold in s145(8)(a) and s145(8)(b) of the LRA; and
  4. although s145(7) of the LRA makes specific reference to ‘the applicant’, it effectively applies to only employers. It makes no provision for an employee who brings a review application to furnish security. The purpose of s145(7) and s145(8) is essentially to dissuade employers from bringing frivolous review applications with no prospects of success and ensure that they are timeously and expeditiously prosecuted.

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)?