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Article 9/2022

In assessing damages for loss of earnings or support suffered by an ex-employee, with reference to a delictual as opposed to a labour law claim, it is usual for a deduction to be made for contingencies as well as general contingencies for which no explicit allowance has been made in the actuarial calculations.  What are contingencies and what is the approach to be adopted in respect of general contingencies?

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  • contingencies are ‘the art of foretelling the future’ – however, general rules have been established: the younger a claimant, the more time he or she has to fall prey to changes and uncertainties of life, such as a downturn in the economy, leading to a reduction in salary, retrenchment, unemployment, ill-health, death, etc; the longer the remaining working life, the more likely the possibility of an unforeseen event impacting on the assumed trajectory of the person’s remaining career – as a general principle, in a pre-morbid scenario, the younger the age of the claimant, the higher the contingency
  • In Road Accident Fund v Guedes 2006 (5) SA 583 (SCA), the court referred with approval to The Quantum Yearbook, by R Koch, under the heading ‘General contingencies’, where it states that when ‘…assessing damages for loss of earnings or support, it is usual for a deduction to be made for general contingencies for which no explicit allowance has been made in the actuarial calculation. The deduction is the prerogative of the court…’.

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  • contingencies are ‘the art of foretelling the future’ – however, general rules have been established: the younger a claimant, the more time he or she has to fall prey to changes and uncertainties of life, such as a downturn in the economy, leading to a reduction in salary, retrenchment, unemployment, ill-health, death, etc; the longer the remaining working life, the more likely the possibility of an unforeseen event impacting on the assumed trajectory of the person’s remaining career – as a general principle, in a pre-morbid scenario, the younger the age of the claimant, the higher the contingency
  • In Road Accident Fund v Guedes 2006 (5) SA 583 (SCA), the court referred with approval to The Quantum Yearbook, by R Koch, under the heading ‘General contingencies’, where it states that when ‘…assessing damages for loss of earnings or support, it is usual for a deduction to be made for general contingencies for which no explicit allowance has been made in the actuarial calculation. The deduction is the prerogative of the court…’.
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)?