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15/10/2026

RELIGIOUS CONVICTIONS V LEGITIMATE OPERATIONAL REQUIREMENTS
South African employers must respect employees' constitutional right to freedom of religion and belief. But what happens when an employee's religious beliefs conflict with the employer's working hours, shift system or operational requirements? The following three judgments provide important guidance:
A. In TDF Network Africa (Pty) Ltd v Faris [2018] ZALAC 30; (2019) 40 ILJ 326 (LAC), the employee, Faris, was a Seventh-day Adventist. Her religion required her to observe the Sabbath from sunset on Friday until sunset on Saturday. Consequently, she could not work on Saturdays. TDF required managers to attend monthly stocktakes over weekends, including Saturdays. Faris refused to attend the Saturday stocktakes because of her religious convictions. TDF was unwilling to make an exception and eventually dismissed her.
The Labour Court (LC) found that the dismissal was automatically unfair on the grounds of religious discrimination. The Labour Appeal Court (LAC) upheld the finding and made several important findings:
1. An employer has a duty to reasonably accommodate an employee's religious beliefs and practices;
2. An employer cannot simply rely on a workplace rule or operational requirement to justify refusing accommodation. It must demonstrate that the requirement is genuinely necessary for a legitimate business purpose;
3. The employer bears the burden of establishing that accommodating the employee would cause undue hardship or insurmountable operational difficulties; and
4. The employer must consider whether alternative arrangements can be made, including adjustments to the employee's duties or working arrangements.
B. In Kievits Kroon Country Estate (Pty) Ltd v Mmoledi [2013] ZASCA 189; 2014 (1) SA 585 (SCA); (2014) 35 ILJ 209 (SCA), Mmoledi was employed as a chef and experienced visions of her ancestors and believed that she had received a calling to become a traditional healer (sangoma). She requested approximately four weeks' unpaid leave to attend a traditional healer's training course. Her employer refused the full period of leave, although it was prepared to grant her one week. She provided a certificate from her traditional healer explaining the circumstances and the need for her to attend the course. Mmoledi nevertheless remained absent from work after the one week had expired. The employer charged her with misconduct and dismissed her for disobeying an instruction and being absent without permission.
The CCMA found the dismissal substantively unfair, which the LC and the LAC upheld. The Supreme Court of Appeal (SCA) dismissed a further appeal and upheld the finding recognising that South African society is characterised by diverse cultural, traditional and religious beliefs and that these beliefs must be treated with respect and made several important findings:
1. Sincerely held religious and cultural beliefs deserve constitutional protection, even where those beliefs differ from conventional or mainstream beliefs;
2. Courts and employers should not attempt to evaluate the logic, acceptability or rationality of an employee's religious or cultural beliefs. The important consideration is whether the belief is sincerely held and is not being invoked for an ulterior purpose; and
3. The employee genuinely believed that failing to heed her ancestors' calling would endanger her health. The evidence supported the finding that her absence was justified in the particular circumstances.
However, Mmoledi does not establish an automatic right to unpaid leave for religious or cultural purposes. The judgment turned on the particular evidence and circumstances.
C. In SACTWU & OTHERS v BERG RIVER TEXTILES - A DIVISION OF SEARDEL GROUP TRADING (PTY) LTD (C 63/2011) [2011] ZALCCT 27; (2012) 33 ILJ 972 (LC), BRT introduced a new shift system which required employees to work on Sundays. One of its employees, Mr Williams, was a committed Christian whose religious beliefs prohibited him from working on Sundays, a practice which was central to his faith. He had previously declined promotions and lucrative overtime opportunities because they required him to work on Sundays. BRT was therefore aware of Williams’ convictions. When he refused to work on a Sunday, he was dismissed, and claimed that his dismissal amounted to unfair discrimination on religious grounds. The Labour Court ordered BRT to reinstate him retrospectively, provided that he could not be compelled to work on Sundays, and made the following important findings:
1. A workplace rule which applies equally to all employees can nevertheless constitute unfair discrimination if it conflicts with an individual employee's sincerely held religious convictions;
2. The employee must establish that the workplace rule interferes with the practice of a central tenet of his or her religion and that the employer was aware of the relevant religious convictions;
3. Once a prima facie case of discrimination is established, the employer must justify the discriminatory requirement and demonstrate that reasonable steps were taken to accommodate the employee; and
4. The principle of proportionality applies. An employer should not insist on compliance with a workplace rule where the employee's refusal to comply would have little or no consequence for the business.
The central principles emerging from these judgments are:
1. Employees have a constitutional right to practise their sincerely held religious beliefs, and this right does not disappear when they enter the workplace;
2. An employer cannot automatically justify a refusal to accommodate religious practices by arguing that its workplace rules apply equally to everybody;
3. Employers have a duty to investigate and reasonably accommodate religious practices, including by considering alternative working hours, shifts or duties;
4. An employer wishing to refuse accommodation must be able to demonstrate genuine operational difficulties or undue hardship. A mere preference for uniform workplace rules is not sufficient; and
5. Employees, in turn, must genuinely hold the beliefs relied upon and should raise their accommodation requests with their employers so that practical arrangements can be explored.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter. The views and opinions expressed in the material referred to in this article are those of the relevant author/s and do not necessarily reflect the personal beliefs, views or opinions of the author or the firm

13/10/2026

AGE DISCRIMINATION COSTS PRASA MORE THAN R1.5 MILLION!
In Bosch v Passenger Rail Agency of SA (C1037/18) [2019] ZALCCT 36; (2026) 47 ILJ 2054 (LC), PRASA decide to reduce the number of employees. The employee, at aged 62, was offered an early retirement package of approximately R 657,000,00 despite having obtained a quotation of more than R2 million under the company's voluntary severance package (VSP). The difference arose because PRASA offered the more favourable VSP to employees younger than 60, while employees between 60 and 63 were offered voluntary early retirement (VER).
The employee accepted the VER under protest but challenged this treatment in the Labour Court, arguing that he had been unfairly discriminated against on the basis of age. The Court agreed and confirmed that in terms of s 11(1) of the EEA, in cases where unfair discrimination is based on a ground listed in s 6(1), if the employee has alleged the ground of discrimination clearly and provide sufficient facts, the employer must prove, that the discrimination did not occur or that it was fair and justified. Failure to discharge this burden results in a finding of unfair discrimination. PRASA had failed to prove that the age-based distinction was rational, fair or justified. Importantly, the Court also rejected PRASA's argument that the employee had waived his right to challenge the discrimination by accepting the early retirement payment, based on the Constitutional Court’s conclusion that constitutional rights could not be waived because they were fundamental, inalienable and supreme.
The case illustrates that employers must be careful when using age as a criterion in employment decisions and benefit arrangements. Furthermore, accepting a payment from an employer does not automatically mean that an employee has waived the right to challenge unlawful discrimination.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

08/10/2026

A 40-MINUTE WORK STOPPAGE - WAS DISMISSAL JUSTIFIED?
In Benteler SA (Pty) Ltd v National Union of Metalworkers of SA & Others
(PA25/24) [2026] ZALAC 6; (2026) 47 ILJ 1828 (LAC), the employees worked for a motor vehicle components manufacturer. During the Covid-19 pandemic, the employer received TERS payments from the Department of Labour. In September 2020, employees were notified that their TERS money had been paid to the employer, but when they enquired about payment, they were told that a reconciliation was still underway. Shortly afterwards, the employer put up a notice stating that it had not received the TERS payments, causing confusion and frustration among the employees.
On 30 September 2020, the employees stopped working during their lunch break and refused to return to their work stations until the plant manager addressed them about the TERS payments. The work stoppage lasted approximately 25 to 40 minutes. The employees were subsequently charged with misconduct and dismissed. They challenged their dismissals, and the Labour Court found that the dismissals were unfair and ordered their retrospective reinstatement. The matter eventually went to the Labour Appeal Court, who accepted that the employees’ conduct amounted to a strike, but nevertheless found that the dismissals could not be justified. The employees had stopped working for a relatively short period, their purpose was to obtain clarity from management about their TERS payments, there had been no damage to the employer’s property and there was no subsequent misconduct. Importantly, the employer had continued employing the employees for almost six months after the incident. The court found it difficult to accept that this brief work stoppage could have caused such a breakdown in the trust relationship that dismissal was justified.
The case illustrates that a work stoppage may constitute misconduct and even an unprotected strike, but that does not automatically mean that dismissal is an appropriate punishment. Employers must consider all the circumstances, including the seriousness and duration of the conduct, its consequences, whether there was any damage or disruption, and the employees’ subsequent conduct. Employees, on the other hand, should understand that even a relatively short work stoppage can have serious consequences and should, where possible, use proper channels to raise workplace grievances.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

25/09/2026

NINE YEARS LATER — CAN AN EMPLOYER STILL DISCIPLINE YOU?
In Public Protector of SA v Samuel & Others, (2026) 47 ILJ 1684 (LC), the employee was the senior provincial representative of the Office of the Public Protector in the Free State. In February 2020, he wrote to the Speaker of the National Assembly requesting an investigation into the conduct of the Public Protector, Adv Mkhwebane, whereafter he was interviewed by the media about his complaints. He was subsequently charged with misconduct, including an allegation of assault, participating in media interviews in breach of the employer's policies and his employment contract, and bringing the Office of the Public Protector into disrepute. He was found guilty and summarily dismissed in December 2020. The employee referred the matter to the CCMA. The commissioner found his dismissal to be substantively unfair. The employer took the award of the CCMA on review to the Labour Court.
One of the important issues concerned the assault allegation, which occurred approximately nine years before the employee was disciplined. The employer had known about the alleged misconduct but had taken no disciplinary action during that period and had provided no satisfactory explanation for the delay. The Labour Court considered whether the employer had effectively waived its right to discipline the employee. The Court referred to the Constitutional Court's definition of waiver as “the legal act of abandoning a right on which one is otherwise entitled to rely” and confirmed that waiver is not easily inferred or established. The onus rests on the party asserting waiver.
The Court further noted that the following factors must be considered when determining whether an employer has waived its right to discipline:
• the length of the delay, which must be unreasonable;
• the employer's explanation for the delay, which must be poor or non-existent;
• whether the employee took steps to ensure a speedy process;
• whether there was material prejudice to the employee; and
• the nature of the offence.
These factors must be considered and balanced holistically. The Court emphasised that employees have a right to a speedy disciplinary process, while employers have a duty to take speedy disciplinary action.
Applying these principles, the Court found that the approximately nine-year delay was extraordinary. During that period, the employer had given no indication that it intended to institute disciplinary proceedings. The Court held that this prolonged inaction was inconsistent with an intention to enforce its disciplinary right. The passage of such a long period also affected the fairness of the disciplinary process. Witnesses may no longer have been available and memories would inevitably have faded. The Court therefore upheld the commissioner’s finding that the employer had waived its right to discipline the employee in respect of the alleged assault. The Labour Court dismissed the review application.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

23/09/2026

CAN YOU BE FOUND GUILTY OF MISCONDUCT YOU WERE NEVER CHARGED WITH?
In Machi v Chep SA (Pty) Ltd & Others (2026) 47 ILJ 1316 (LAC), the appellant, a senior HR business partner, was scheduled to attend her employer’s Achievers Awards event in Cape Town on 6 July 2017. She requested permission to miss the event and return to Durban because she was feeling unwell. After landing in Durban during working hours, however, she did not go home or to her employer’s offices, but instead chaired a disciplinary hearing for another company, Zala Corporates, describing herself in the finding as its “HR director”. She was subsequently dismissed for gross misconduct and dishonesty. The CCMA found that the formal charges had not been established, but found her guilty of an “unexpressed fourth allegation” arising from the evidence and held that the dismissal was substantively fair, although procedurally unfair.
The employee challenged the award, arguing that the commissioner had effectively created a new charge and imposed dismissal where the disciplinary code provided for a lesser sanction. The Labour Appeal Court rejected this argument. It held that the so-called fourth allegation accurately described the conduct forming the substance of the employer’s case from the outset. Although the charges were inelegantly drafted, they concerned a single narrative relating to the events of 6 July 2017. The important consideration was whether the employee knew the substance of the allegation and had a fair opportunity to answer it, rather than the particular legal label given to the misconduct.
The court further held that dismissal fell within the band of reasonable sanctions. The employee occupied a senior HR position involving responsibility for company policies, ethics and trust. Her use of company time, while claiming to be unwell, to perform work for a third party and hold herself out as its HR director constituted a serious breach of the trust relationship. The Labour Appeal Court therefore found no reviewable irregularity and dismissed the appeal. The case illustrates that, in disciplinary proceedings, the substance of the allegation and whether the employee had a fair opportunity to respond may be more important than the precise label attached to the charge.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

02/06/2026

CONSTRUCTIVE DISMISSAL - EMPLOYEES SHOULD HAVE A THICK SKIN
In Maleka v Boyce NO & Others (2026) 47 ILJ 839 (CC), the employee was part of ADT’s executive committee and reported to the managing director of ADT (“the MD”). Ahead of the planned acquisition of ADT by the Fidelity Security Group (“FSG”), the employee was informed that ADT had appointed a new financial director (“the FD”), and that, once ADT was acquired by FSG, the FD would also oversee the IT portfolio which the employee headed. This meant that the employee would no longer be reporting to the MD, but to a person on his level, the FD. The employee resigned before the changes to his working conditions were implemented, and alleged that the unilateral change to his conditions of employment had rendered his employment so intolerable that he had no option but to resign.
A commissioner at the CCMA found that the employee’s argument that the change in his reporting line constituted a demotion, which made his continued employment intolerable was without substance, in view of the fact that his title, position on Exco, salary, roles and responsibilities remained the same. The commissioner also concluded that because the proposed change had not materialised, and the employee failed to exhaust ADT’s internal grievance procedures, which he was required to follow, he was not constructively dismissed. The Labour Court agreed with the findings of the CCMA, and dismissed the employee’s application for review.
On appeal, the Labour Appeal Court found that the employee could have averted his resignation and properly resolved the dispute, and that his failure to pursue other feasible remedies short of resigning was not, objectively speaking, justified nor reasonable.
On further appeal, the Constitutional Court confirmed the three requirements for constructive dismissal namely: 1) the employee must have terminated the contract of employment, 2) the reason for the termination of the contract must be that continued employment had become intolerable for the employee, and 3) it must have been the employer who made continued employment intolerable.
With regard to intolerability the Court stated the following:
“[73] In my view, intolerability means something more than just conduct (on the part of the employer) or working conditions, which simply result in difficult, unpleasant or stressful situations for the employee. It would not be enough that the employer’s conduct is merely rude, uncompromising or unbecoming. Likewise, ‘even a breach of the employment contract, deductions from salary, or unfair disciplinary actions would not per se establish intolerability’. The employee would need to show that such conduct is characterised by what can objectively be construed as unendurable or agonising and he or she must show that the perpetrator is their employer. In other words, it must be clear that the employer’s conduct was the cause for complaint and that it brought the employee’s tolerance to a breaking point.
[74] It follows that termination in these circumstances must be a measure of last resort. As I pointed out already, and as the authorities show, the threshold for establishing intolerability under s 186(1)(e) of the LRA is high. And so it should be. This is to avoid an unhealthy situation in a workplace where employees, who have become disgruntled and dissatisfied for flimsy reasons, would simply walk out and thereafter claim a constructive dismissal. Such a situation would be at odds with the prescripts of fairness in labour practices, which requires that ‘an employee who is dissatisfied with his employer’s conduct, at first, offers the employer an opportunity to redress the dissatisfaction. Employees should refrain from hastily resigning and then arguing that the employment relationship had become unbearable”.
The Court also found that at its most fundamental level, the Labour Relations Act provides a mechanism for resolving disputes, which in turn helps to maintain harmonious employment relations. In instances where a grievance process is available to an employee, and which would, if applied, resolve the cause of complaint, the employee will ordinarily be required to follow it. The court therefore agreed with the CCMA’s finding that the employee’s failure to lodge a grievance counted against him. The Court found that the employee had failed to prove constructive dismissal.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

22/04/2026

BASIC CONDITIONS OF EMPLOYMENT ACT - EARNINGS THRESHOLD INCREASE FOR 2026
The earnings threshold, in terms of Section 6(3) of the Basic Conditions of Employment Act (“BCEA”), has been increased to R 269,600.90 per year (R 22 466.74 per month), with effect from 1 May 2026. The current earnings threshold is R 261,748.45 per year. This represents an increase of 3%.
The earnings threshold has the effect that the limitations or protections afforded by certain sections of the BCEA, do not apply to employees earning above the new threshold. These sections are:
- section 9 (hours of work);
- section 10 (overtime);
- section 11 (compressed working week);
- section 12 (averaging of hours);
- section 14 (meal intervals);
- section 15 (daily and weekly rest periods);
- section 16 (pay for work on Sundays)
- section 17 (2) (night work); and
- section 18 (3) (public holidays on which the employee would not ordinarily work).
For purposes of the new threshold “earnings” means the regular annual remuneration before deductions, i.e. income tax, pension, medical and similar payments, but excluding similar payments (contributions) made by the employer in respect of the employee. Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked, are not regarded as remuneration.
The earnings threshold also has an effect on certain other provisions of the BCEA, the Labour Relations Act (LRA), and Employment Equity Act (EEA) namely; 1) Which employees are regarded as permanent employees in terms of s198B of the LRA, 2) The ability to claim any outstanding amount due to the employee, in terms of the BCEA, the National Minimum Wage Act, a contract of employment, a sectoral determination, or a collective agreement, in the CCMA, 3) Whether unfair discrimination disputes may be referred to the CCMA, as opposed to the Labour Court, in terms of s10(6) of the EEA.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

16/04/2026

IS A MUTUAL SEPARATION AGREEMENT PERMISSIBLE IN THE CONTEXT OF A PROPOSED RETRENCHMENT?
In WBHO Construction v Masenya N.O. and Others (JA124/24) [2026] ZALAC 10, the employer approached the employee and discussed the employer’s operational needs and the possibility of transferring the employee to the Northern Cape, where his skills were needed. The employee declined the transfer because he wanted to be with his family. Thereafter the parties signed a Mutual Separation Agreement (MSA), and the employee received severance pay.
The employee referred an unfair dismissal dispute to the CCMA, which found that the agreement was not an MSA, but that the employer retrenched the employee and failed to comply with the requirements of s189 of the Labour Relations Act (LRA). An order reinstating the employee was issued.
On review the Labour Court (LC) held that the employer's failure to comply with the provisions of s189 of the LRA was fatal and made the employee's dismissal unfair, and that an employer cannot use a MSA to circumvent the procedure set out in s189 of the LRA.
On appeal, the Labour Appeal Court inter alia relying on Wells v South African Alumenite Company, where the Court held that:
“If there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and enforced by the courts of justice.”
and Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotels Interests (Pty) Ltd, where the Court stated that:
‘The privity and sanctity of contract entails that contractual obligations must be honoured when the parties have entered into the contractual agreement freely and voluntarily. The notion of the privity and sanctity of contracts goes hand in hand with the freedom to contract. Taking into consideration the requirements of a valid contract, freedom to contract denotes that parties are free to enter into contracts and decide on the terms of the contract’
made the following key findings:
1. There was no finding that the employee was coerced into signing the MSA and that both parties entered into and signed the MSA voluntarily;
2. The conclusion by the LC that the employer avoided the s189 processes is unfounded, as there is nothing preventing parties from entering into a MSA at any time when operational requirements are discussed, even informally; and
3. The MSA being valid and enforceable, there is no question of dismissal, and as such, the CCMA had no jurisdiction to entertain the employee’s dispute.
The information published in this article is for general purposes only and does not constitute legal advice. I accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in this article. Kindly contact me on any specific legal problem or matter.

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