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Article 9/2024

LabourEdge

By now, it is firmly established that the workplace is governed by both statutory and contractual rights and obligations.

What are the fundamental principles differentiating the aforesaid scenarios?

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Scenario 1: LRA right

  • This is a right to be enforced by an employee (generally excluding an employer) to be found in the LRA – examples are alleged unfair dismissal disputes and alleged unfair labour practice disputes.
  • The claim of the employee is for reinstatement, re-employment or compensation (NUMSA obo Fohlisa v Hendor Mining Supplies (2017) 37 ILJ 1560 (CC).
  • In this regard, depending on the nature of the dispute, the CCMA or the labour court has jurisdiction (see, inter alia, s193, s194 and s195 of the LRA).
  • Essentially, what is challenged in terms of this scenario is the alleged unfair conduct of the employer.

Scenario 2: contractual right

  • This scenario entails a dispute about the alleged breach of a contract, so to be instituted by either the employer or employee.
  • The claim in this regard is for damages, compensation or specific performance (Mahonono v National Heritage Council (2022) 33 SALLR 162 (LC); SAMWU v Tswaing Local Municipality (2022) 33 SALLR 60 (LAC); Greyling v George Randell High School (2023) 34 SALLR 82 (LC).
  • The labour and high courts have concurrent jurisdiction in terms of s77(3), read with s77A(e) of the BCEA
  • In this regard, the unlawful conduct of either the employer or the employee is challenged and not the unfair element of such conduct – in essence, if the alleged breach of contract dispute entails a dismissal without complying with the contractual rights and obligations, the dismissal is to be found unlawful and ab initio void.
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)?