South Africa: Employment case law update March 2025 – key takeaways

On Thursday, 27 March 2025, we hosted a hybrid webinar on the latest cases impacting the employment law landscape in South Africa. Please click here to access the recording. Citations and mini-summaries of the cases discussed, together with key takeaways, are set out below.

Automatically unfair dismissal/ working beyond retirement age

• Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panelbeaters; Solidarity obo Strydom and Others v State Information Technology Agency SOC Limited (CCT298/22; CCT346/22) [2024] ZACC 29 (20 December 2024)

Automatically unfair dismissal in terms of section 187(1)(f) of the Labour Relations Act, 1995 (LRA) – age discrimination – employees continued working beyond agreed retirement age – whether employer entitled to dismiss employee at any time thereafter on basis that employee has reached normal retirement age – interpretation of sections 187(1)(f) and 187(2)(b) – two matters consolidated and considered by Court – Court delivering three judgments, however no majority on the legal interpretation of the provisions – first judgment (per Zondo CJ) finds that a dismissal based on age is fair only if the employee’s employment is terminated on the exact date upon which the employee attains their normal or agreed retirement age, or if the agreement allows for this, the last day of the month in which they reach retirement age – second judgment (per Van Zyl AJ) finds that upon the employee reaching the normal or agreed retirement age, the employer has an election whether to terminate the employee’s employment on the basis of age, which election can take place on a date later than the retirement-age date – if the employer fails to make the election within a reasonable time, it may be found to have elected not to terminate the employment relationship – third judgment (per Rogers J) finds that once an employee has reached the normal or agreed retirement age, section 187(2)(b) permits the employer, then or at any time thereafter, to terminate the employee’s appointment on the basis of age, upon the giving of reasonable notice.

Key takeaways: (1) The fact that there was no majority in the highest court when it comes to the legal issue means that the law in this area is not yet settled. Until another matter with similar facts comes before the Court and enjoins it to reconsider the issue, the legal position will remain as it was following the Labour Appeal Court (LAC) decision in MISA obo Landman v Great South Autobody CC t/a Great South Panel Beaters – ie that employers are permitted to require an employee to retire at any stage after having reached the agreed or normal retirement age. (2) This case, and others, have shown that costly disputes can arise when employers terminate the services of employees who have continued working after an agreed or normal retirement age. With the law in this area not yet settled, employers are encouraged to take steps to avoid claims. These steps include incorporating clear contractual provisions in the employment contract around retirement, having systems in place that remind employers when individual employees will be reaching their respective retirement dates, discussing the matter of retirement with the employee concerned prior to the retirement date and, if the intention is to retire the employee in line with the agreed retirement age, providing reasonable advance warning of this.  

The judgment is available here.

Retrenchment

• Shushu & Others v Distell Ltd (Springs) (JS81/21) [2024] ZALCJHB (10 December 2024)

Dismissal for operational requirements – company facing liquidity crisis during Covid-19 pandemic requiring workforce to agree to a 10% pay cut for 12 months as an alternative to retrenchment – agreement reached with 99.9% of workforce (4 000 employees) but fewer than ten employees, including the three applicants, refused to agree and were retrenched – dismissals found substantively unfair and reinstatement ordered.

Key takeaways: (1) The prevailing test for the substantive fairness of a dismissal for operational requirement (ie a retrenchment) is whether the dismissal is a rational and reasonable response to an operational requirements predicament faced by the employer.  In applying this test, our courts will not simply accept an employer’s reasons for retrenchment at face value, and will interrogate whether there is a rational connection between the retrenchment and the stated commercial objectives and whether the decision to retrench is a reasonable option in all the circumstances, considering among other things, the principle of proportionality. (2) It has been recognised by our courts that an employer may change terms and conditions of employment through an operational requirements process in terms of section 189 of the LRA, where employees who do not accept the proposed changes are retrenched and substituted with new employees who do. That being said, employers should tread carefully in retrenching employees who refuse to take a pay cut in circumstances where the desired cost savings are met due to other employees agreeing to the cut. In this case, the Court held that the employer had failed to prove that the retrenchments were substantively fair in circumstances where the majority of the workforce had agreed to a pay cut that resulted in the targeted cost saving being achieved by the company. One of the reasons proffered by the employer for the employees’ dismissals was that it sought to ensure consistency and avoid labour disputes. This reason was rejected by the Court, as such objectives did not fall within the definition of ‘operational requirements’, being ‘requirements based on the economic, technological, structural or similar needs of an employer’. As for the argument about cost savings, the Court found that, considering the small saving the employer would have gained by the employees’ retrenchment relative to the overall savings, the employees’ dismissals were disproportionate because they were of no (or very little) consequence to the company, but severely impacted the livelihoods of the employees.  

The judgment is available here.

Strike violence

• South African Container Depots (Pty) Ltd t/a Bidvest SACD v Sheriff: Durban Coastal (D16/2025) [2025] ZALCD 3 (28 January 2025)

Urgent application to interdict unprotected strike – strike resulting from retrenchment process – no picketing rules agreed prior to commencement of strike, but subsequently determined by CCMA – three of the applicant’s employees, or employees of its contractors killed and an assault mounted against a group of other employees – employer contended that acts of violence were directly linked to the strike, which were anathematic to rational collective bargaining, with the result that the strike action had become counter-productive to collective bargaining – principle established by the LAC that a strike’s protected status may be forfeited premised not on the basis of any violence which may have been perpetrated in the course thereof, but rather in circumstances in which permissible demands devolve into the realm of the impermissible – regardless of whether the offences in question can be found to be linked to the strike, such a finding cannot result in the strike itself becoming unprotected – application dismissed.

Key takeaway: This case finds that the fact that acts of violence may be committed, linked to strike action, however egregious such acts of violence may be, cannot result in a strike which is otherwise protected becoming one which is unprotected. An employer’s remedy in such circumstances would be to seek an interdict to restrain the striking employees from committing the violent conduct, which requires an employer to link particular strikers, or an identifiable group, to the misconduct.

The judgment is available here. 

Unfair discrimination (harassment)

• Padayachee v Gauteng Department of Education (JS485/23) [2024] ZALCJHB 501 (1 December 2024)

Unfair discrimination in terms of section 6 of the Employment Equity Act, 1998 (EEA) – language, culture and race – plaintiff an Indian social worker at school for physically disabled children – most learners black African – auxiliary social worker appointed because of alleged language barriers preventing plaintiff from properly performing her duties – alleged that plaintiff did not understand the children and their culture – plaintiff ostracised and hostile and intimidating work environment created – grievance not taken seriously by defendant – abuse of power by officials constituted unfair discrimination, in the form of harassment, based on race, culture, ethnicity and language – defendant shirked its responsibilities to address the unlawful conduct of its officials and is itself guilty of, and liable for, having unfairly discriminated against the plaintiff – plaintiff awarded ZAR50 000 in compensation and costs, and defendant ordered to investigate the complaints and grievances of the plaintiff within 60 days and take appropriate disciplinary action against the officials mentioned in the judgment.

Key takeaways: (1) This judgment serves as a reminder to employers not to make assumptions about employees’ language and communication skills based solely on race or ethnic origin. Conduct based on such assumptions may well constitute unfair discrimination on the basis of race, ethnicity, culture or language. (2) Employers are also reminded that they have a duty to investigate allegations of harassment that are brought to their attention without delay and to take all necessary steps to eliminate the alleged conduct. Failure to take such steps may result in vicarious liability on the part of the employer in terms of section 60 of the EEA, where it is proven that an employee has committed harassment at the workplace.

The judgment is available here. 

Defamation claim against former employer

• Ndobe v Gibela Rail Consortium RF (Pty) Ltd (4241/2020) [2024] ZAGPJHC 1215 (27 November 2024)

Defamation claim against former employer – requirement of publication – report compiled for disciplinary proceedings – copies shared at disciplinary hearing with plaintiff, manager, representative from human resources and chairperson – distributing report not constituting publication for purposes of defamation claim – distribution of report to another representative of defendant, on behalf of defendant – even if published, disciplinary hearing was privileged occasion and report was pertinent and essential for its purposes – action dismissed.

Key takeaway: One of the defences to a defamation claim is that the statement was made during a privileged occasion. Qualified privilege applies to litigants in respect of defamatory statements made during the course of legal proceedings, where such statements are relevant to an issue in the proceedings. This qualified privilege extends to disciplinary proceedings. This immunity will only be forfeited where it is established that the person making the statement acted with an improper motive. To protect themselves against defamation claims when it comes to investigation reports and disciplinary proceedings, it is advisable for employers to ensure that reports are factually accurate and relevant to the issue at hand, and that confidentiality is maintained throughout the process. This means, among others, that the details of such reports are only shared with those employees or other personnel who need to have the information, because of their involvement in the process or decision-making.   

The judgment is available here. 

Reinstatement

• South African Municipal Workers Union obo Koopman v City of Cape Town and Others (CA5/2023) [2025] ZALCCT 5 (22 January 2025)

Appeal against finding of court a quo that arbitration award was a debt and that certification does not affect this fact; and dismissing application having found that it had already prescribed by the time it was certified – issue of prescription moot due to employee’s failure to tender services in line with arbitration award – remedy of reinstatement – employment contract – reciprocal duties on employees and employers – reinstatement order is not self-executing – duty on employee to tender services following reinstatement order and on employer to accept employee back into employment – right to fair labour practices extends to employers – unreasonable and unfair to expect employers to keep a position open indefinitely for an employee who was unfairly dismissed and awarded reinstatement to decide for themselves when they feel it appropriate to return to work – failure to tender services is fatal to execution of arbitration award or judgment ordering reinstatement – appeal dismissed.

Key takeaway: An employer is not obliged to keep an employee’s seat ‘warm’ where the employee has not tendered their services within a reasonable period following a reinstatement order. Where an employee fails to tender their services within the time period specified in the reinstatement order, or on good cause shown, within a reasonable period thereafter, their entitlement to reinstatement lapses and an employer is not obliged to reinstate them.

The judgment is available here. 

Incapacity dismissal

• Le Franschhoek Hotel v Commission for Conciliation, Mediation and Arbitration and Others (C238/2022) [2025] ZALCJHB 84 (3 March 2025)

Dismissal – incapacity due to mental ill-health – chef took control of fire-fighting during kitchen fire – later experiencing panic attacks, anxiety and difficulty sleeping – was receiving treatment, including in-patient care for period of time – Commissioner finding dismissal substantively unfair, referencing item 10(4) of Code of Good Practice: Dismissal – found that injury was workplace related and greater responsibility for accommodation rested on employer – chef reported himself ready to assume role following in-patient treatment – experts who treated him confirmed his readiness – failure or refusal to permit chef to assume his position constituted dismissal – no reason to interfere with Commissioner’s decision – review application dismissed.

Key takeaway: Employers have a more onerous duty to reasonably accommodate employees who are injured at work or suffer from a work-related illness, including mental health conditions resulting from work-related incidents. This may include support for reintegration, making adjustments to work duties, or providing alternative work, before considering dismissal as a last resort. An employer’s failure to assist with an employee’s recovery, such as by not facilitating suggested medical treatments or not offering alternative duties, where reasonable, can render a dismissal for incapacity substantively unfair.

The judgment is available here. 

Restraints of trade

• Altron Nexus (Pty) Ltd v Fowler anhttps://www.saflii.org/za/cases/ZALCJHB/2025/84.pdfd Another (2024/112022) [2024] ZALCJHB 507 (6 December 2024)

Urgent application to enforce restraint of trade agreement – critical communication products – applicant had previously not enforced restraint agreements against former employees who joined direct competitors – intention to enforce restraint agreement only communicated after respondent tendered his resignation – considering applicant’s selective enforcement of restraint agreements in the past and its non-communication to employees that practice of non-enforcement has changed and that it would enforce restraint agreements in future, it would be unreasonable to enforce restraint agreement against respondent – application dismissed.

Key takeaways: (1) This case suggests that the selective enforcement of restraint agreements by employers can result in a restraint which would otherwise be reasonable, to be rendered unenforceable. Notably, the Court acknowledged that this is the first judgment dealing with this issue of selective enforcement of restraint agreements. (2) Where an employer has a history of not enforcing restraints against former employees and seeks the flexibility to be able to enforce restraints in future, it may be advisable for the employer to communicate this intention to employees going forward. Should a dispute arise, it should also be able to put up evidence justifying why restraint agreements may not have been enforced against particular employees in the past. 

The judgment is available here. 

• Bearing Man Group (Pty) Ltd v Herholdt and Another (C2024/116445) [2024] ZALCCT 54 (15 November 2024)

Urgent application to enforce restraint of trade agreement – employee having worked for competitors with common client pool – confidential information worthy of protection – historic interactions with client in six months prior to termination – balance can be struck that will largely protect applicant from first respondent exploiting her knowledge of recent details of client interactions without subjecting her to lengthy period during which she is prevented from resuming employment with second respondent – partial enforcement of restraint.  

Key takeaway: In determining whether a restraint of trade should be enforced, our courts are required to balance two competing interests – the interest of the employer in protecting its proprietary interests; and the employee’s interest in freely pursuing their chosen trade or profession. In a case where the interests of both parties can be adequately achieved by the severability of the restraint, or by pairing down its ambit to what is necessary to preserve the protectible interest without preventing the employee from taking up other work, our courts are becoming more inclined to order a partial enforcement of a restraint to strike this balance. In this case, where the erstwhile employee had worked for competitors (including her new employer) with a common client pool, and the main vulnerability to the applicant lay in her being able to use her recent interactions and knowledge of its customer needs derived from those interactions as a salesperson of her new employer, the Court held that the desired balance could be struck by reducing the length of her non-compete undertaking, while enforcing a longer non-solicitation provision. Accordingly, the original 24-month restraint was reduced to six and a half weeks in respect of the non-compete undertaking (insofar as it applied to the employee’s employment by the new competitor employer), and four and a half months in respect of the provision relating to the non-solicitation of customers identified on a confidential list that had been made available to the Court.      

The judgment is available here.

• Backsports (Pty) Ltd v Motlhanke and Another (2025/009346) [2025] ZALCJHB 68 (18 February 2025)

Urgent application to enforce restraint of trade – employee summarily dismissed for misconduct almost ten months into his employment – setting up business in competition with applicant – applicant failed to plead with sufficient particularity the nature of employee’s position and day-to-day duties, so Court left to speculate whether he had access to any confidential information – no details pleaded about the trade connections the employee had or may have made during his employment – bare allegation that employee had access to confidential information and was introduced to customers at the commencement of employment not sufficient to show protectable interest – fact that employee was dismissed disentitled the applicant from enforcing the restraint agreement – applicant waived its right to enforce the restraint when first respondent left because of dismissal – application dismissed, with costs.

Key takeaways: (1) Where an employer seeks to enforce a restraint of trade, it is important that proper evidence is placed before the court, including evidence regarding the employee’s job description and the nature of their position, and evidence that proves that the employee in question had access to confidential information or details about the trade connections the employee may have made during their employment. The bare allegation that an employee had access to confidential information or was introduced to customers, for example, will not be sufficient to show a protectable interest. (2) The reasonableness of a restraint will be determined with reference to, among other things, the duration of an employee’s employment with an employer and the circumstances surrounding termination of their employment. (3) This case suggests that where an employee is dismissed, an employer will not be entitled to enforce a restraint of trade against the employee.

The judgment is available here.