Skip to main content

Article 9/2025

The constitutional court, in Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines Ltd, the CCMA and Moropa NO (2008) 19 SALLR 35 (CC), signalled the end of the reasonable employer test to be utilised when an arbitration award is taken on review. How does the pre-Sidumo scenario differ from the post-Sidumo
scenario that is currently applicable?

_____________________________________

PRE-SIDUMO SCENARIO

In this scenario, the following principles applied:

  • when the employer dismissed an employee, it utilised various ‘tools’, including statutory rights and obligations, as well as contractual rights and obligations
  • when the CCMA arbitrated the dismissal dispute, it utilised the reasonable employer test, entailing that the employer’s view of fairness prevailed and that the CCMA arbitrator only interfered with such viewpoint if the employer did not behave like a reasonable employer
  • the enquiry at the CCMA was not an enquiry de novo

POST-SIDUMO SCENARIO
In this scenario, the following principles are applicable:

  • when the CCMA arbitrates a dismissal dispute, the arbitrator sits as a reasonable decision-maker
  • the arbitrator performs an administrative function and is obliged to properly exercise its administrative powers
  • the commissioner’s view of fairness prevails and no longer the employer’s view of fairness
  • the reasonable decision-maker test is applied within an enquiry de novo
  • when the LC reviews the decision of the commissioner, the following considerations are applicable:
    • the grounds of review, as set out in s145(2) of the LRA, are still applicable, namely:
      • whether or not the commissioner committed misconduct in relation to his or her duties as an arbitrator;
      • whether or not the commissioner committed a gross irregularity;
      • whether or not the commissioner exceeded his/her powers;
      • whether or not the award has been improperly obtained
  • apart from the above, the grounds of review, as set out in s158(1)(g) of the LRA, are still applicable, namely, subject to s145, the LC may review the performance of any function provided in the LRA, on any ground permissible in law
  • thus, the grounds of review set out in the LRA have been maintained and are subsumed by the constitutional requirement of reasonableness
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)?